Exhibit 99.1
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DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
Seller
DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS LLC
Servicer
and
DAIMLERCHRYSLER MASTER OWNER TRUST
AMENDED AND RESTATED
SALE AND SERVICING AGREEMENT
Dated as of November 28, 2006
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Table of Contents
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.................................................................................1
SECTION 1.02 Other Definitional Provisions..............................................................21
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01 Conveyance of Receivables..................................................................22
SECTION 2.02 Acceptance by the Trust; Payment for Conveyances...........................................24
SECTION 2.03 Representations and Warranties of the Seller Relating to the Seller and this Agreement.....25
SECTION 2.04 Representations and Warranties of the Seller Relating to the Receivables...................27
SECTION 2.05 Addition of Accounts.......................................................................29
SECTION 2.06 Covenants of the Seller....................................................................33
SECTION 2.07 Removal of Eligible Accounts...............................................................35
SECTION 2.08 Removal of Ineligible Accounts.............................................................41
SECTION 2.09 Sale of Ineligible Receivables.............................................................42
SECTION 2.10 Representations and Warranties as to the Trust's Security Interest in the Receivables......42
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Acceptance of Appointment and Other Matters Relating to the Servicer.......................43
SECTION 3.02 Servicing Compensation.....................................................................45
SECTION 3.03 Representations, Warranties and Covenants of the Servicer..................................46
SECTION 3.04 Reports and Instructions for the Trustee...................................................48
SECTION 3.05 Annual Servicer's Certificate..............................................................49
SECTION 3.06 Annual Independent Public Accountants' Servicing Report....................................49
SECTION 3.07 Tax Treatment..............................................................................50
SECTION 3.08 Notices to DCFS............................................................................50
SECTION 3.09 Adjustments................................................................................50
SECTION 3.10 Dealer Concentrations......................................................................50
ARTICLE IV
DEPOSIT, ALLOCATION AND
APPLICATION OF COLLECTIONS AND OTHER AMOUNTS
SECTION 4.01 Interests in Receivables and Other Collateral..............................................51
SECTION 4.02 Deposits of Collections into the Collection Account........................................52
SECTION 4.03 Allocations of Collections and Other Amounts to Each Series................................53
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SECTION 4.04 Allocations of Collections to the Seller...................................................54
SECTION 4.05 Repurchased Receivables Purchase Price Payments............................................54
SECTION 4.06 Excess Funding Account; Deposits, Allocations and Withdrawals..............................55
SECTION 4.07 Unallocated Principal Collections..........................................................57
ARTICLE V
[RESERVED]
ARTICLE VI
[RESERVED]
ARTICLE VII
OTHER MATTERS RELATING TO THE SELLER
SECTION 7.01 Liability of the Seller....................................................................58
SECTION 7.02 Limitation on Liability of the Seller......................................................58
SECTION 7.03 Seller Indemnification of the Trust, the Trustee, the Owner Trustee and
the Enhancement Providers..................................................................58
SECTION 7.04 Transfer of Seller's Interest to Designated Affiliate......................................59
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
SECTION 8.01 Liability of the Servicer..................................................................60
SECTION 8.02 Merger or Consolidation of, or Assumption of, the Obligations of the Servicer..............60
SECTION 8.03 Limitation on Liability of the Servicer and Others.........................................60
SECTION 8.04 Servicer Indemnification of the Trust, the Trustee, the Owner Trustee and
the Enhancement Providers..................................................................61
SECTION 8.05 The Servicer Not to Resign.................................................................61
SECTION 8.06 Access to Certain Documentation and Information Regarding the Receivables..................62
SECTION 8.07 Delegation of Duties.......................................................................62
SECTION 8.08 Examination of Records.....................................................................62
SECTION 8.09 Optional Repurchase by the Servicer........................................................62
ARTICLE IX
[RESERVED]
ARTICLE X
SERVICE DEFAULTS
SECTION 10.01 Service Defaults...........................................................................63
SECTION 10.02 Trustee to Act; Appointment of Successor...................................................65
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ARTICLE XI
EXCHANGE ACT REPORTING
SECTION 11.01 Further Assurances.........................................................................66
SECTION 11.02 Form 10-D Filings..........................................................................66
SECTION 11.03 Form 8-K Filings...........................................................................67
SECTION 11.04 Form 10-K Filings..........................................................................67
SECTION 11.05 Report on Assessment of Compliance and Attestation.........................................67
SECTION 11.06 Servicer's Annual Compliance Statement.....................................................69
SECTION 11.07 Back-up Sarbanes-Oxley Certification.......................................................70
SECTION 11.08 Use of Subcontractors......................................................................70
SECTION 11.09 Representations and Warranties.............................................................71
SECTION 11.10 Indemnification............................................................................71
SECTION 11.11 Amendments of Article XI...................................................................72
ARTICLE XII
TERMINATION
SECTION 12.01 Termination of Agreement...................................................................73
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Amendment..................................................................................73
SECTION 13.02 Protection of Right, Title and Interest to Trust...........................................74
SECTION 13.03 No Petition................................................................................75
SECTION 13.04 GOVERNING LAW..............................................................................75
SECTION 13.05 Notices....................................................................................76
SECTION 13.06 Severability of Provisions.................................................................76
SECTION 13.07 Assignment.................................................................................76
SECTION 13.08 Further Assurances.........................................................................76
SECTION 13.09 No Waiver; Cumulative Remedies.............................................................77
SECTION 13.10 Counterparts...............................................................................77
SECTION 13.11 Third-Party Beneficiaries..................................................................77
SECTION 13.12 Rule 144A Information......................................................................77
SECTION 13.13 Merger and Integration.....................................................................77
SECTION 13.14 Headings...................................................................................77
SECTION 13.15 Limitation on Liability of the Owner Trustee and Trustee...................................78
EXHIBITS
EXHIBIT A [Intentionally Omitted]
EXHIBIT B Form of Assignment of Receivables in Additional Accounts
EXHIBIT C Form of Annual Servicer's Certificate
EXHIBIT D [Intentionally Omitted]
EXHIBIT E [Intentionally Omitted]
EXHIBIT F [Intentionally Omitted]
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EXHIBIT G-1 Form of Opinion of Counsel with respect to Amendments
EXHIBIT G-2 Form of Opinion of Counsel with respect to Accounts
EXHIBIT H Form of Reassignment Agreement
EXHIBIT I [Intentionally Omitted]
EXHIBIT J Form of Subordinated Note of the Seller
EXHIBIT K Form of Assignment and Assumption Agreement
SCHEDULES
SCHEDULE 1 List of Accounts
APPENDICES
APPENDIX A Item 1119 Parties
APPENDIX B Minimum Servicing Criteria to be addressed in Servicing Assessment
APPENDIX C Performance Certification (Reporting Subcontractor)
APPENDIX D Performance Certification (Servicer)
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AMENDED AND RESTATED SALE AND SERVICING AGREEMENT, dated as of November
28, 2006, among DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC, a Delaware limited
liability company, as Seller, DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS LLC, a
Michigan limited liability company (the successor by merger to DaimlerChrysler
Services North America LLC), as Servicer, and DAIMLERCHRYSLER MASTER OWNER
TRUST, a Delaware statutory trust.
WITNESSETH:
WHEREAS, pursuant to the Program Amendment Agreement, dated as of
December 16, 2004, among DCWR, DCS (the predecessor to DCFS), the CARCO Trust
Trustee, the Trust, the Trustee and the Owner Trustee (as amended and
supplemented from time to time, the "Program Amendment Agreement"), the CARCO
Trust governed under the Pooling and Servicing Agreement was dissolved, and the
Pooling and Servicing Agreement (and the Series 2002-CC Supplement) among DCWR,
DCS (the predecessor to DCFS) and the CARCO Trust Trustee was terminated, upon,
among other things, the execution and delivery of the Sale and Servicing
Agreement, dated as of December 16, 2004 (the "Original Agreement"), among DCWR,
DCS (the predecessor to DCFS) and the Trust; and
WHEREAS, the parties hereto now wish to amend and restate the Original
Agreement to add provisions to provide for the Trust's compliance with
Regulation AB promulgated by the Securities and Exchange Commission with respect
to Notes issued from time to time after the date of this Agreement by the Trust
under the Indenture and offered for sale to the public; and, in connection with
such modifications, also update (i) prior references to DaimlerChrysler Services
North America LLC in the Original Agreement, to DaimlerChrysler Financial
Services Americas LLC which succeeded DCS by merger on January 1, 2006 and (ii)
prior references to Chase Manhattan Bank USA, National Association in the
Original Agreement, to Deutsche Bank Trust Company Delaware which succeeded
Chase Bank USA, National Association (formerly Chase Manhattan Bank USA,
National Association) as Owner Trustee on September 22, 2006.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, each party agrees as follows for the benefit of the other parties
hereto:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
"Account" shall mean each Existing Account and, from and after the
related Addition Date, each Additional Account. The term "Account" shall not
apply to any Removed Accounts reassigned or assigned to the Seller or the
Servicer in accordance with the terms of this Agreement.
"Addition Date" shall mean, with respect to Additional Accounts, the
date from and after which such Additional Accounts are to be included as
Accounts pursuant to Section 2.05(c).
"Addition Notice" shall have the meaning specified in Section 2.05(c).
"Additional Account" shall mean each individual wholesale financing
account established by DCFS with a Dealer pursuant to a Floorplan Financing
Agreement, which account is designated pursuant to Section 2.05(a) or (b) to be
included as an Account and is identified in the computer file or microfiche or
written list delivered to the Trust and the Trustee by the Seller pursuant to
Sections 2.01 and 2.05(d).
"Additional Cut-Off Date" shall mean, with respect to Additional
Accounts, the day specified in the Addition Notice delivered with respect to
such Additional Accounts pursuant to Section 2.05(c).
"Adjustment Payment" shall have the meaning specified in Section 3.09.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" shall mean, with respect to any Series, the Person so
designated in the related Indenture Supplement.
"Aggregate Series Nominal Liquidation Amount" shall mean, at any time
of determination, an amount equal to the sum of the Series Nominal Liquidation
Amounts for all Series of Notes at such time (in each case, after giving effect
to the allocations, distributions, withdrawals and deposits to be made at such
time).
"Aggregate Series Servicing Fee" shall have the meaning specified in
Section 3.02.
"Agreement" shall mean this Amended and Restated Sale and Servicing
Agreement, as the same may from time to time be further amended, modified or
otherwise supplemented.
"Assignment" shall have the meaning specified in Section 2.05(d).
"Assignment and Assumption Agreement" shall mean an agreement among the
Seller, the Designated Affiliate and the Trust, which shall be acknowledged and
agreed to by the Trustee, substantially in the form of Exhibit K.
"Automatic Additional Accounts" shall have the meaning specified in
Section 2.05(f).
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"Automatic Removal Date" shall have the meaning specified in Section
2.07(g).
"Automatic Removed Accounts" shall have the meaning specified in
Section 2.07(g).
"Business Day" shall mean, unless otherwise specified in the Indenture
Supplement for any Series or Class of Notes, any day other than (a) a Saturday
or a Sunday or (b) any other day on which national banking associations or state
banking institutions in New York, New York or Wilmington, Delaware, are
authorized or obligated by law, executive order or governmental decree to be
closed.
"CARCO" shall mean Chrysler Auto Receivables Company, a Delaware
corporation, and its successors in interest.
"CARCO Certificate" shall mean the certificate issued to the "Seller"
(under and as defined in the Pooling and Servicing Agreement) by the CARCO Trust
pursuant to the Pooling and Servicing Agreement.
"CARCO Collection Account" shall mean the "Collection Account"
established and maintained in the name of the CARCO Trust Trustee pursuant to
Section 4.02 of the Pooling and Servicing Agreement. Pursuant to Section 6(a) of
the Program Amendment Agreement, on the Effective Date or promptly thereafter,
the CARCO Trust Trustee shall (i) liquidate all the investments then credited to
the CARCO Collection Account, (ii) transfer all such liquidation proceeds,
together with any other monies then on deposit in the CARCO Collection Account,
to the Collection Account and (iii) shall terminate the CARCO Collection
Account.
"CARCO Excess Funding Account" shall mean the "Excess Funding Account"
established and maintained in the name of the CARCO Trust Trustee pursuant to
Section 4.02 of the Series 2002-CC Supplement. Pursuant to Section 6(b) of the
Program Amendment Agreement, on the Effective Date or promptly thereafter, the
CARCO Trust Trustee shall (i) liquidate all the investments then credited to the
CARCO Excess Funding Account, (ii) transfer all such liquidation proceeds,
together with any other monies then on deposit in the CARCO Excess Funding
Account, to the Excess Funding Account and (iii) shall terminate the CARCO
Excess Funding Account.
"CARCO Trust" shall mean the CARCO Auto Loan Master Trust governed
under the Pooling and Servicing Agreement.
"CARCO Trust Trustee" shall mean The Bank of New York, a New York
banking corporation, in its capacity as "Trustee" under the Pooling and
Servicing Agreement. The Bank of New York is the successor CARCO Trust Trustee
under the Pooling and Servicing Agreement to Manufacturers and Traders Trust
Company.
"Cash Management Accounts" shall mean the deposit accounts maintained
by DCFS for the benefit of the Dealers.
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"CCC" shall mean Chrysler Credit Corporation, a Delaware corporation,
and its successors in interest. As of the date of this Agreement, DCFS is the
indirect successor in interest to CCC.
"CFC" shall mean Chrysler Financial Company L.L.C., a Michigan limited
liability company, and its successors in interest. As of the date of this
Agreement, DCFS is the indirect successor in interest to CFC.
"CFC Corp." shall mean Chrysler Financial Corporation, a Michigan
corporation, and its successors in interest. As of the date of this Agreement,
DCFS is the indirect successor in interest to CFC Corp.
"Class" shall mean, with respect to any Series, any one of the classes
of Notes of that Series.
"Closing Date" shall mean, with respect to any Series, the "Issuance
Date" for such Series, as specified in the related Indenture Supplement.
"Collateral" shall have the meaning specified in the Indenture.
"Collateral Certificate" shall mean the Auto Loan Asset Backed
Certificates, Series 2002-CC issued by the CARCO Trust pursuant to the Pooling
and Servicing Agreement, as supplemented by the Series 2002-CC Supplement.
"Collateral Security" shall mean, with respect to any Receivable, all
collateral security granted by or on behalf of the related Dealer with respect
thereto, including a first priority perfected security interest in the related
Vehicle, certain parts inventory, equipment, fixtures, service accounts, chattel
paper, instruments, franchise rights or realty with respect to such Dealer and
all guarantees of any Receivable.
"Collection Account" shall mean the "Collection Account" established
and maintained in the name of the Trustee pursuant to Section 402(a) of the
Indenture.
"Collection Period" shall mean, with respect to any Payment Date, the
calendar month preceding the month in which such Payment Date occurs.
"Collections" shall mean, without duplication, all payments by or on
behalf of Dealers received by the Servicer in respect of the Receivables, in the
form of cash, checks, wire transfers or any other form of payment, including
amounts paid by Dealers for deposit to such Dealers' cash management account and
such Dealer's wholesale deposit account as provided in such Dealers' Floorplan
Financing Agreements. Collections of Non-Principal Receivables shall include all
Recoveries.
"Commission" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Securities Act or the
Exchange Act, then the body performing such duties on such date.
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"Corporate Trust Office" shall have, with respect to the Trustee, the
meaning specified in the Indenture.
"DaimlerChrysler" shall mean DaimlerChrysler Corporation, a Delaware
corporation, and its successors in interest. As of the date of the Original
Agreement, DaimlerChrysler was the successor in interest to Chrysler
Corporation. References to DaimlerChrysler include its predecessor, Chrysler
Corporation.
"Date of Processing" shall mean, with respect to any transaction, the
date on which such transaction is first recorded on the Servicer's computer file
of accounts (without regard to the effective date of such recordation).
"DCFS" shall mean DaimlerChrysler Financial Services Americas LLC, a
Michigan limited liability company, and its successors in interest. DCFS is the
successor by merger to DCS, which itself was the successor by merger to CFC, a
Michigan limited liability company, which itself was the successor by merger to
CFC Corp., a Michigan corporation, which itself was the successor by merger to
CCC. References to DCFS include, as appropriate, references to DCS, CFC, CFC
Corp. or CCC. By way of example and not limitation of the preceding sentence,
the phrase "an account originated by DCFS" will, unless otherwise expressly
specified, include an account originated by DCS, CCC, CFC Corp. or CFC, as
appropriate.
"DCMOT Certificate" shall mean the certificate, substantially in the
form attached as Exhibit B to the Trust Agreement, issued by the Trust pursuant
to Article X of the Trust Agreement.
"DCS" shall mean DaimlerChrysler Services North America LLC, a Michigan
limited liability company, and its successors in interest. As of the date of
this Agreement, DCFS is the successor in interest to DCS.
"DCWR" shall mean DaimlerChrysler Wholesale Receivables LLC, a Delaware
limited liability company, and its successors in interest.
"Dealer" shall mean a Person engaged generally in the business of
purchasing Vehicles from a manufacturer thereof and holding such Vehicles for
sale or lease in the ordinary course of business.
"Dealer Overconcentration" on any Determination Date shall mean, with
respect to any Dealer or group of affiliated Dealers, the excess of (a) the
aggregate of all amounts of Principal Receivables due from such Dealer or group
of affiliated Dealers on the last day of the Collection Period immediately
preceding such Determination Date over (b) 2% of the Pool Balance on the last
day of such immediately preceding Collection Period; provided, however, that the
percentage specified in clause (b) shall be 4% in the case of either AutoNation,
Inc. and its affiliates or United Auto Group, Inc. and its affiliates; provided,
further, that the Seller may, upon 10 days' prior notice to the Trustee and each
Rating Agency and upon satisfaction of the Rating Agency Condition, increase the
percentage specified in clause (b) (including, for the avoidance of doubt, the
percentage specified in the immediately preceding proviso).
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"Dealer Trouble Status" shall mean, with respect to an Account, that
any of the following circumstances apply to such Account: (i) the related Dealer
has failed to remit any principal or interest due on a Receivable in such
Account when due; (ii) the Servicer has been notified of any liens, levies or
attachments on the related Collateral Security or (iii) the related Dealer has
experienced a general deterioration of its financial condition as determined by
the Servicer.
"Defaulted Amount" on any Determination Date shall mean an amount
(which shall not be less than zero) equal to (a) the sum for all the Accounts of
the amount of Principal Receivables which became Defaulted Receivables during
the immediately preceding Collection Period minus (b) the sum of (i) the full
amount of any such Defaulted Receivables which are subject to reassignment or
assignment to the Seller or the Servicer in accordance with the terms of this
Agreement and (ii) the excess, if any, for the immediately preceding
Determination Date of the amount determined pursuant to this clause (b) for such
Determination Date over the amount determined pursuant to clause (a) for such
Determination Date; provided, however, that, if an Insolvency Event occurs with
respect to the Seller, the amounts of such Defaulted Receivables which are
subject to reassignment to the Seller shall not be added to the sum so
subtracted and, if an Insolvency Event occurs with respect to the Servicer, the
amount of such Defaulted Receivables which are subject to assignment to the
Servicer shall not be added to the sum so subtracted.
"Defaulted Receivables" on any Determination Date shall mean (a) all
Receivables in an Account which are charged off as uncollectible in respect of
the immediately preceding Collection Period in accordance with the Servicer's
customary and usual servicing procedures for servicing Dealer floorplan
receivables comparable to the Receivables which have not been sold to third
parties and (b) all Receivables which were Eligible Receivables when transferred
to the Trust (or to the CARCO Trust if such Receivables were initially
transferred to the CARCO Trust), which arose in an Account that thereafter
became an Ineligible Account and which remained outstanding for any six
consecutive Determination Dates (inclusive of the Determination Date on which
such determination is being made) after such Account became an Ineligible
Account.
"Deposit Date" shall mean each day on which the Servicer deposits
Collections in the Collection Account pursuant to Section 4.03.
"Designated Account" shall have the meaning specified in Section
2.07(b).
"Designated Affiliate" shall mean a corporation or limited liability
company which is (a) a direct or indirect wholly-owned subsidiary of DCFS, (b)
which is a corporation or limited liability company, and (c) which is formed for
limited purposes which shall be substantially the same purposes for which CARCO
is formed.
"Designated Affiliate Transfer" shall have the meaning specified in
Section 7.04(a).
"Designated Balance" shall have the meaning specified in Section
2.07(b).
"Designated Receivables" shall have the meaning specified in Section
2.07(c).
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"Determination Date" with respect to any Payment Date shall mean the
day that is two Business Days prior to such Payment Date.
"DTS Account" shall have the meaning specified in Section 2.07(f).
"DTS Designated Balance" shall have the meaning specified in Section
2.07(f).
"DTS Removal Commencement Date" shall have the meaning specified in
Section 2.07(f).
"DTS Removal Date" shall have the meaning specified in Section 2.07(f).
"Due Date" shall mean the close of business on the last Business Day of
each month.
"Early Redemption Event" shall have the meaning specified in the
Indenture.
"Effective Date" shall mean December 16, 2004.
"Eligible Account" shall mean each individual wholesale financing
account originated by DCFS with a Dealer pursuant to a Floorplan Financing
Agreement in the ordinary course of business, which, as of the date of
determination with respect thereto: (a) is in favor of a Dealer which is an
Eligible Dealer, (b) is in existence and maintained and serviced by DCFS and (c)
is an Account in respect of which no amounts have been charged off as
uncollectible or are classified as past due or delinquent.
"Eligible Dealer" shall mean a Dealer, as of the date of determination
thereof, (a) which is located in the United States of America (including its
territories and possessions), (b) which has not been identified by the Servicer
as being the subject of any voluntary or involuntary bankruptcy proceeding or in
voluntary or involuntary liquidation, (c) in which DaimlerChrysler or any
Affiliate thereof does not have an equity investment and (d) which is not in
"dealer trouble status" as determined by the Servicer under the Floorplan
Financing Guidelines.
"Eligible Receivable" shall mean each Receivable:
(a) which was originated or acquired by DCFS in the ordinary course of
business; provided, however, that if such Receivable was acquired by DCFS
from a Person that is not DaimlerChrysler or any of its Affiliates, such
Receivable shall have satisfied the Rating Agency Condition;
(b) which has arisen under an Eligible Account and is payable in United
States dollars;
(c) which is owned by DCFS at the time of sale to the Seller;
(d) which represents the obligation of a Dealer to repay an advance
made to such Dealer to finance the acquisition of Vehicles;
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(e) which at the time of creation and at the time of transfer to the
Trust (or if such Receivable was initially transferred to the CARCO Trust,
at the time of transfer to the CARCO Trust) is secured by, inter alia, a
first priority perfected security interest in the Vehicle relating thereto;
(f) which was created in compliance in all respects with all
Requirements of Law applicable thereto and pursuant to a Floorplan
Financing Agreement which complies in all respects with all Requirements of
Law applicable to any party thereto;
(g) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by DaimlerChrysler,
DCFS or the Seller in connection with the creation of such Receivable or
the transfer thereof to the Trust (or to the CARCO Trust if such Receivable
was initially transferred to the CARCO Trust) or the execution, delivery
and performance by DCFS of the Floorplan Financing Agreement pursuant to
which such Receivable was created, have been duly obtained, effected or
given and are in full force and effect;
(h) as to which at all times following the transfer of such Receivable
to the Trust (or to the CARCO Trust if such Receivable was initially
transferred to the CARCO Trust), the Trust or the CARCO Trust, as
applicable, will have good and marketable title thereto free and clear of
all Liens arising prior to the transfer or arising at any time, other than
Liens permitted by this Agreement;
(i) which (1) if originally transferred to the CARCO Trust, has been
the subject of a valid transfer and assignment from the Seller to the CARCO
Trust and from the CARCO Trust to the Trust of all the Seller's right,
title and interest in such Receivable (including any proceeds thereof) and
(2) if directly sold by the Seller to the Trust, has been the subject of a
valid transfer and assignment from the Seller to the Trust of all the
Seller's right, title and interest in such Receivable (including any
proceeds thereof);
(j) which will at all times be the legal, valid, binding and assignable
payment obligation of the Dealer relating thereto, enforceable against such
Dealer in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws, now or hereafter in effect, affecting the enforcement
of creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity);
(k) which at the time of transfer to the Trust (or to the CARCO Trust
if such Receivable was initially transferred to the CARCO Trust) is not
subject to any right of rescission, setoff, counterclaim or any other
defense (including defenses arising out of violations of usury laws) of the
Dealer;
(l) as to which, at the time of transfer of such Receivable to the
Trust (or to the CARCO Trust if such Receivable was initially transferred
to the CARCO Trust),
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DaimlerChrysler, DCFS and the Seller have satisfied all their respective
obligations with respect to such Receivable required to be satisfied at
such time;
(m) as to which, at the time of transfer of such Receivable to the
Trust (or to the CARCO Trust if such Receivable was initially transferred
to the CARCO Trust), neither DaimlerChrysler, DCFS nor the Seller has taken
nor failed to take any action which would impair the rights of the Trust or
the Noteholders therein;
(n) which constitutes "tangible chattel paper" or an "account" or
"payment intangible", each as defined in Article 9 of the UCC as then in
effect in the State of Michigan; and
(o) with respect to which the representations set forth in Sections
2.04(a)(i) and (ii) were correct at the time of transfer of such Receivable
to the Trust (or to the CARCO Trust if such Receivable was initially
transferred to the CARCO Trust).
"Eligible Servicer" shall mean the Trustee or an entity which, at the
time of its appointment as Servicer, (a) is legally qualified and has the
capacity to service the Accounts, (b) in the sole determination of the Trustee,
which determination shall be conclusive and binding, has demonstrated the
ability to professionally and competently service a portfolio of similar
accounts in accordance with high standards of skill and care and (c) is
qualified to use the software that is then currently being used to service the
Accounts or obtains the right to use or has its own software which is adequate
to perform its duties under this Agreement.
"Enhancement" shall mean the rights and benefits provided to the
Noteholders of any Series or Class pursuant to any letter of credit, surety
bond, cash collateral account, spread account, guaranteed rate agreement,
maturity liquidity facility, tax protection agreement, interest rate swap
agreement or other similar arrangement. The subordination of any Series or Class
to any other Series or Class, or of the Overcollateralization Amount to any
Series or Class, shall each be an Enhancement.
"Enhancement Agreement" shall mean any agreement, instrument or
document governing the terms of any Enhancement or pursuant to which any
Enhancement is issued or outstanding. A "Derivative Agreement" (as defined in
the Indenture) shall be an Enhancement Agreement; but an Indenture Supplement
that provides for the terms of an Overcollateralization Amount shall not be an
Enhancement Agreement.
"Enhancement Provider" shall mean the Person providing any Enhancement,
other than any Noteholders the Notes of which are subordinated to any Series or
Class. A "Derivative Counterparty" (as defined in the Indenture) shall be an
Enhancement Provider; but there shall not be an Enhancement Provider with
respect to an Overcollateralization Amount.
"Excess Available Principal Amounts" shall mean, with respect to any
Payment Date, the sum of all Shared Excess Available Principal Amounts for all
Series of Notes that are not required for payment or deposit into an account
under the Indenture Supplement for any Series on such Payment Date.
9
"Excess Funding Account" shall mean the "Excess Funding Account"
established and maintained in the name of the Trustee pursuant to Section 402(b)
of the Indenture.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Existing Account" shall mean each individual wholesale financing
account originated by DCFS with a Dealer pursuant to a Floorplan Financing
Agreement which is identified in the computer file or microfiche or written list
delivered to the Trust and the Trustee on the Effective Date by the Seller
pursuant to Section 2.01.
"Fleet Receivables" shall mean all amounts shown in special accounts on
the Servicer's records as amounts payable by any Dealer designated by DCFS as a
"fleet dealer" in respect of advances made by DCFS to such Dealer or advances
made by DaimlerChrysler to such Dealer and purchased by DCFS, in each case to
finance the acquisition of Vehicles in lots of five or more.
"Floorplan Financing Agreement" shall mean, collectively, the group of
related agreements between and among DCFS, the Dealer with respect thereto and,
in the case of new Vehicles, a Vehicle manufacturer, pursuant to which (a) DCFS
agrees to extend credit to such Dealer to finance the acquisition of used
Vehicles and new Vehicles manufactured by such manufacturer, (b) such Dealer
grants to DCFS a security interest in the specific Vehicles financed by DCFS,
certain other Vehicles, certain other collateral and the proceeds thereof, (c)
such Dealer agrees to repay advances made by DCFS on demand but in any event
such Dealer agrees to repay not less than 90% of each such advance upon the sale
of the Vehicle to which such advance relates and the remaining balance of such
advance not later than the tenth day of the second calendar month following the
month in which such sale occurs, and (d) the obligations of such Dealer to repay
such advances is evidenced by one or more demand promissory notes of such
Dealer.
"Floorplan Financing Guidelines" shall mean DCFS's written policies and
procedures, as such policies and procedures may be amended from time to time,
(a) relating to the operation of its floorplan financing business, including the
written policies and procedures for determining the interest rate charged to
Dealers, the other terms and conditions relating to DCFS's wholesale financing
accounts, the creditworthiness of Dealers and the extension of credit to
Dealers, and (b) relating to the maintenance of accounts and collection of
receivables.
"Form 10-D Disclosure Item" shall mean with respect to any Person, any
litigation or governmental proceedings pending against such Person, or any of
the Trust, the Seller, the Indenture Trustee, the Owner Trustee or the Servicer
if such Person, or in the case of the Owner Trustee or Indenture Trustee, a
Responsible Officer of such Person, has actual knowledge thereof, in each case
that would be material to the Noteholders.
"Form 10-K Disclosure Item" shall mean with respect to any Person, (a)
any Form 10-D Disclosure Item, (b) any affiliations between such Person and any
Item 1119 Party, to the extent such Person, or in the case of the Owner Trustee
or Indenture Trustee, a Responsible Officer of such Person, has actual knowledge
thereof and (c) any relationships or transactions between such Person and any
Item 1119 Party that are outside the ordinary course of
10
business or on terms other than would be obtained in an arm's-length transaction
with an unrelated third party, apart from the transactions contemplated under
the Transaction Documents, and that are material to the investors' understanding
of the Notes, but only to the extent such Person, or in the case of the Owner
Trustee or Indenture Trustee, a Responsible Officer of such Person, has actual
knowledge of such relationships or transactions.
"Governmental Authority" shall mean the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indenture" shall mean the Amended and Restated Indenture, dated as of
December 16, 2004, between the Trust and the Trustee, as amended and
supplemented from time to time.
"Indenture Supplement" shall mean any supplement to the Indenture
pursuant to which a Series of Notes is issued, as amended and supplemented from
time to time.
"Indenture Trustee" shall mean the Trustee.
"Ineligible Account" shall mean an Account that at the time of
determination is not an Eligible Account.
"Ineligible Amount" on any Determination Date shall mean the amount of
Ineligible Receivables included in the Trust on such Determination Date pursuant
to Section 2.09. "Ineligible Receivable" shall mean any Receivable that arises
in an Eligible Account, was not an Eligible Receivable at the time of its
transfer to the Trust and was transferred to the Trust in accordance with
Section 2.09.
"Initial Cut-Off Date" shall mean November 30, 2004.
"Insolvency Event" shall mean, with respect to any specified Person:
(a) such Person shall file a petition commencing a voluntary case under
any chapter of the Federal bankruptcy laws; or such Person shall file a petition
or answer or consent seeking reorganization, arrangement, adjustment or
composition under any other similar applicable Federal law, or shall consent to
the filing of any such petition, answer or consent; or such Person shall
appoint, or consent to the appointment of, a custodian, receiver, liquidator,
trustee, assignee, sequestrator or other similar official in bankruptcy or
insolvency of it or of any substantial part of its property; or such Person
shall make an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due; or
(b) any order for relief against such Person shall have been entered by
a court having jurisdiction in the premises under any chapter of the Federal
bankruptcy laws, and such order shall have continued undischarged or unstayed
for a period of 60 days; or a decree or order by a court having jurisdiction in
the premises shall have been entered approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of such Person
under
11
any other similar applicable Federal law, and such decree or order shall have
continued undischarged or unstayed for a period of 120 days; or a decree or
order of a court having jurisdiction in the premises for the appointment of a
custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of such Person or of any
substantial part of its property, or for the winding up or liquidation of its
affairs, shall have been entered, and such decree or order shall have remained
in force undischarged or unstayed for a period of 120 days.
"Insurance Proceeds" with respect to an Account shall mean any amounts
received by the Servicer pursuant to any policy of insurance which is required
to be paid to DCFS pursuant to a Floorplan Financing Agreement.
"Interest Collections" shall mean (i) Collections of interest and other
nonprincipal charges (including insurance service fees, handling fees,
Recoveries and Insurance Proceeds) and (ii) any interest and earnings (net of
losses and investment expenses) on funds on deposit in the Collection Account.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended.
"Item 1119 Party" shall mean a party identified on Appendix A to this
Agreement.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, participation interest, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement and any financing lease
having substantially the same economic effect as any of the foregoing.
"Miscellaneous Payments" shall mean, with respect to any Collection
Period, the sum of (a) Adjustment Payments and Transfer Deposit Amounts on
deposit in the Collection Account on the related Payment Date and (b)
Unallocated Principal Collections available to be treated as Miscellaneous
Payments pursuant to Section 4.07 on such Payment Date.
"Monthly Payment Rate" shall mean, for any Collection Period, the
percentage derived from dividing the Principal Collections for such Collection
Period by the average daily Pool Balance for such Collection Period.
"Monthly Servicing Fee Rate" shall mean 1/12 of 1% per month, or such
lesser percentage as the Servicer shall determine in connection with a waiver by
the Servicer of all or any portion of the Servicing Fee on any date. The annual
servicing fee rate is 1%.
"Moody's" shall mean Moody's Investors Service, Inc., or its successor.
12
"Nominal Liquidation Amount" shall mean, with respect to any Series or
Class of Notes, the amount specified as such in the related Indenture
Supplement.
"Non-Principal Receivables" with respect to any Account shall mean all
amounts billed to the related Dealer in respect of interest and all other
non-principal charges, including insurance service fees and handling fees.
"Note" or "Notes" shall mean any note or notes of any Series or Class
authenticated and delivered from time to time under the Indenture.
"Noteholder" or "Holder" shall have the meaning specified in the
Indenture.
"Noteholders' Interest" shall have the meaning specified in Section
4.01.
"Note PFA Earnings Shortfall" shall mean, with respect to each Payment
Date, the sum of the "PFA Earnings Shortfalls" for all Series of Notes as
calculated under the related Indenture Supplements.
"Note Rating Agency" shall have the meaning specified in the Indenture.
"Notice Date" shall have the meaning specified in Section 2.05(c).
"Officers' Certificate" with respect to any corporation or limited
liability company shall mean, unless otherwise specified in this Agreement, a
certificate signed by (a) the Chairman of the Board, Vice Chairman of the Board,
President or any Vice President and (b) a Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary of such corporation or limited liability
company.
"Opinion of Counsel" shall mean a written opinion of counsel, who may
be counsel of the Seller or DCFS and who shall be reasonably acceptable to the
Trustee.
"Original Agreement" shall have the meaning specified in the recitals
of this Agreement.
"Outstanding Dollar Principal Amount" shall mean, with respect to any
Series or Class of Notes, the amount specified as such in the related Indenture
Supplement.
"Overcollateralization Amount" shall mean, with respect to any Series,
the amount specified as such in the related Indenture Supplement. For the
avoidance of doubt, unless otherwise specified in the related Indenture
Supplement, the Overcollateralization Amount for any Series shall equal the sum
of the "Primary Overcollateralization Amount" for such Series (as defined in the
related Indenture Supplement) plus the "Incremental Overcollateralization
Amount" for such Series (as defined in the related Indenture Supplement).
"Overconcentration Amount" on any Determination Date shall mean the sum
of the Dealer Overconcentrations on such Determination Date.
13
"Overconcentration Default Amount" on any Determination Date shall
mean, with respect to each Dealer or group of affiliated Dealers with respect to
which there existed a Dealer Overconcentration during the immediately preceding
Collection Period, the lesser of (a) the aggregate amount of Receivables in the
Accounts of such Dealers which became Defaulted Receivables during such
Collection Period and (b) the aggregate amount of such Dealer Overconcentrations
on such Determination Date.
"Owner Trustee" shall mean Deutsche Bank Trust Company Delaware, a
Delaware banking corporation, in its capacity as "Owner Trustee" under the Trust
Agreement, and any successor thereto in such capacity under the Trust Agreement.
Deutsche Bank Trust Company Delaware is the successor Owner Trustee under the
Trust Agreement to Chase Bank USA, National Association (formerly Chase
Manhattan Bank USA, National Association).
"Partial Account" shall mean any Account pursuant to which any
Purchased Receivables have arisen.
"Payment Date" shall mean the fifteenth day of each month or, if such
day is not a Business Day, the next succeeding Business Day.
"Permitted Transaction" shall have the meaning specified in Section
2.06(f).
"Person" shall mean any individual, corporation, estate, partnership,
limited liability company, limited liability partnership, joint venture,
association, joint-stock company, business trust, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Pool Balance" shall mean, as of the time of determination thereof, the
aggregate of Principal Receivables in the Trust at such time.
"Pooling and Servicing Agreement" shall mean 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, among 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.
"Prime Rate" shall mean the rate designated as the "prime rate" from
time to time by certain financial institutions selected by DCFS.
"Principal Collections" shall mean all Collections of Principal
Receivables.
"Principal Receivables" with respect to an Account shall mean amounts
shown on the Servicer's records as Receivables (other than such amounts which
represent Non-Principal Receivables) payable by the related Dealer.
Notwithstanding anything to the contrary in this Agreement, (i) Purchased
Receivables and Fleet Receivables shall not be deemed to be Principal
Receivables for the purposes of this Agreement and (ii) the amount of Principal
Receivables on any date of determination for all purposes of this Agreement
shall be deemed to be the actual
14
amount thereof at such time minus the aggregate amount on deposit at such time
in the Cash Management Accounts maintained for the benefit of the related
Dealers.
"Program Amendment Agreement" shall have the meaning specified in the
recitals of this Agreement.
"Purchased Assets" shall have the meaning specified in Section 2.01(a).
"Purchased Receivables" shall mean, with respect to an Existing Account
or Additional Account, the principal amounts shown on the Servicer's records as
amounts payable by the related Dealer (and interest accrued thereon), from time
to time in respect of advances made by DCFS to such Dealer prior to the Initial
Cut-Off Date or the applicable Additional Cut-Off Date, as the case may be, or
advances made by DaimlerChrysler to such Dealer and purchased by DCFS prior to
the Initial Cut-Off Date or the applicable Additional Cut-Off Date, as the case
may be, in each case to finance the acquisition of Vehicles by such Dealer, in
which an interest has been sold, transferred, assigned or otherwise conveyed by
DCFS prior to the Initial Cut-Off Date or the applicable Additional Cut-Off
Date, as the case may be, to any Person other than DCWR, CARCO or the Trust.
"Purchased Receivables Owners" shall mean any Person that has acquired
an interest in any Purchased Receivable other than DCFS.
"Purchase Price" shall mean, with respect to any Receivable for any
date on which such Receivable is to be purchased pursuant to Section 3.03, (a)
an amount equal to the amount payable by the Dealer in respect thereof as
reflected in the records of the Servicer as of the date of purchase plus (b)
interest accrued from the end of the last Collection Period in respect of which
interest on such Receivable was billed by the Servicer, at a per annum rate of
the Prime Rate plus 1.00%, based on the actual number of days elapsed over a
year of 360 days.
"Rating Agency" shall mean, with respect to any outstanding Series or
Class, each statistical rating agency selected by the Seller to rate the Notes
of such Series or Class. Notwithstanding anything to the contrary in this
Agreement, the term "Rating Agency" shall mean, whenever used in this Agreement,
Moody's and Standard & Poor's; provided, however, that any notice required to be
given to a Rating Agency pursuant to this Agreement shall also be given to
Fitch, Inc. (together with its successors, "Fitch"), although Fitch shall not be
deemed to be a Rating Agency for any purposes of this Agreement.
"Rating Agency Condition" shall mean, with respect to any action, that
each Rating Agency shall have notified the Seller, the Servicer and the Trustee
in writing that such action will not result in a reduction or withdrawal of the
rating of any outstanding Series or Class with respect to which it is a Rating
Agency.
"Ratings Effect" shall have the meaning specified in the Indenture.
"Reassignment" shall have the meaning specified in Section 2.07(c).
"Reassignment Amount" shall mean, with respect to any Payment Date,
after giving effect to any deposits and distributions otherwise to be made on
such Payment Date, the
15
sum of (a) the Aggregate Series Nominal Liquidation Amount on such Payment Date
and (b) accrued and unpaid interest on the Outstanding Dollar Principal Amount
of all of the Notes through the day preceding such Payment Date.
"Receivables" shall mean, with respect to an Account, all amounts shown
on the Servicer's records as amounts payable by the related Dealer, from time to
time in respect of advances made by DCFS to such Dealer or advances made by
DaimlerChrysler to such Dealer and purchased by DCFS, in each case to finance
the acquisition of Vehicles by such Dealer, together with the group of writings
evidencing such amounts and the security interest created in connection
therewith. Receivables which become Defaulted Receivables shall not be shown on
the Servicer's records as amounts payable (and will cease to be included as
Receivables) on the day on which they become Defaulted Receivables. Receivables
which DCFS is unable to transfer to the Seller pursuant to the Receivables
Purchase Agreement or which the Seller is, unable to transfer to the Trust as
provided in Section 2.06(b) and Receivables which arise in Designated Accounts
from and after the related Removal Commencement Date shall not be included in
calculating the amount of Receivables. Notwithstanding anything to the contrary
in this Agreement, Purchased Receivables and Fleet Receivables shall not be
deemed to be Receivables for the purposes of this Agreement.
"Receivables Purchase Agreement" shall mean the Second Amended and
Restated Receivables Purchase Agreement, dated as of December 16, 2004, between
DCFS (as successor by merger to DCS) and DCWR, as amended and supplemented from
time to time.
"Recoveries" on any Determination Date shall mean all amounts received,
including Insurance Proceeds, by the Servicer during the Collection Period
immediately preceding such Determination Date with respect to Receivables which
have previously become Defaulted Receivables.
"Regulation AB" shall mean Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1506 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
"Related Documents" shall mean, collectively, the Receivables Purchase
Agreement, the Subordinated Note, the Trust Agreement and the DCMOT Certificate.
"Removal and Repurchase Date" shall have the meaning specified in
Section 2.07(c).
"Removal and Repurchase Notice Date" shall have the meaning specified
in Section 2.07(c).
"Removal Commencement Date" shall have the meaning specified in Section
2.07(b).
"Removal Date" shall have the meaning specified in Section 2.07(b).
16
"Removal Notice" shall have the meaning specified in Section 2.07(b).
"Removed Account" shall have the meaning specified in Section 2.07(d),
2.07(f) or 2.08(c), as applicable.
"Reportable Event" shall mean, with respect to the Notes of any Series
or Class, any event required to be reported on Form 8-K, including the following
with respect to such Notes:
(a) entry into a definitive agreement related to the Trust, such Notes
or the Receivables, or an amendment to a related Transaction Document, even
if the Seller is not a party to such agreement (e.g., a servicing agreement
with a servicer contemplated by Item 1108(a)(3) of Regulation AB), it being
understood that the event specified in this clause (a) shall not apply to a
Person other than the Seller if the Seller is a party to such agreement;
(b) termination of a related Transaction Document (other than by
expiration of the agreement on its stated termination date or as a result
of all parties completing their obligations under such agreement), even if
the Seller is not a party to such agreement (e.g., a servicing agreement
with a servicer contemplated by Item 1108(a)(3) of Regulation AB), it being
understood that the event specified in this clause (b) shall not apply to a
Person other than the Seller if the Seller is a party to such agreement;
(c) with respect to the Servicer only, the occurrence of a Service
Default, an Early Redemption Event or an Event of Default;
(d) the resignation, removal, replacement, substitution of the
Indenture Trustee, the Owner Trustee or any co-trustee only as applicable
to each party;
(e) with respect to the Indenture Trustee only, a required distribution
to holders of the Notes is not made as of the required Payment Date under
the Indenture; and
(f) with respect to the Servicer only, if the Servicer becomes aware of
any bankruptcy or receivership of the Seller, the Indenture Trustee, the
Owner Trustee, any enhancement or support provider contemplated by Item
1114(b) or 1115 of Regulation AB, or other material party contemplated by
Item 1101(d)(1) of Regulation AB.
"Reporting Subcontractor" shall mean, with respect to a Person, any
Subcontractor determined by such Person pursuant to Section 11.08 to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB. References to a Reporting Subcontractor shall refer only to the
Subcontractor of such Person and shall not refer to Subcontractors generally.
"Repurchased Receivables Purchase Price" shall have the meaning
specified in Section 2.07(c).
17
"Required Participation Amount" shall mean, at any time of
determination, an amount equal to (a) the sum of the amounts for each Series of
Notes obtained by multiplying the Required Participation Percentage for such
Series by the Nominal Liquidation Amount of such Series of Notes at such time
plus (b) the sum of the Overcollateralization Amounts for all outstanding Series
of Notes on the immediately preceding Determination Date (after giving effect to
the allocations, distributions, withdrawals and deposits to be made on the
Payment Date following such Determination Date).
"Required Participation Percentage" shall mean, with respect to any
Series, unless otherwise specified in the related Indenture Supplement, 103%;
provided, however, that if either (a) the aggregate amount of Principal
Receivables due from either AutoNation, Inc. and its affiliates or United Auto
Group, Inc. and its affiliates at the close of business on the last day of any
Collection Period with respect to which such determination is being made
pursuant to Section 3.10 is greater than 4% of the Pool Balance on such last day
or (b) the aggregate amount of Principal Receivables due from any other Dealer
or group of affiliated Dealers at the close of business on the last day of any
Collection Period with respect to which such determination is being made
pursuant to Section 3.10 is greater than 1.5% of the Pool Balance on such last
day, the Required Participation Percentage shall mean, as of such last day and
with respect to such Collection Period and the immediately following Collection
Period only, 104%; provided, further, that the Seller may, upon 10 days' prior
notice to the Trustee and each Rating Agency and upon satisfaction of the Rating
Agency Condition, reduce the Required Participation Percentage to a percentage
which shall not be less than 100%.
"Requirements of Law" for any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to or binding upon
such Person or to which such Person is subject, whether Federal, state or local
(including usury laws and the Federal Truth in Lending Act).
"Responsible Officer" shall mean: (i) with respect to the Servicer, a
"Servicing Officer" (as defined herein); (ii) with respect to the Indenture
Trustee, an "Indenture Trustee Authorized Officer" (as defined in the
Indenture); and (iii) with respect to any other Person, an officer designated in
an officer's certificate of such Person or other notice signed by an officer of
such Person as authorized to act for such Person.
"Secured Party" shall mean any "Secured Party" as defined in the
Indenture. For the avoidance of doubt, unless otherwise specified in the
Indenture or any Indenture Supplement, the Secured Parties under the Indenture
shall be the Noteholders and the Enhancement Providers.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller" shall mean DCWR and its successors in interest to the extent
permitted hereunder.
"Seller's Certificates" shall mean, collectively, the DCMOT Certificate
and any outstanding Supplemental Certificates. The Seller's Certificates shall,
in the aggregate, evidence
18
100% of the Seller's Interest. As of the date of this Agreement, the DCMOT
Certificate remains the sole Seller's Certificate.
"Seller's Interest" shall have the meaning specified in Section 4.01.
"Seller's Interest Collections" shall have the meaning specified in
Section 4.04(a).
"Seller's Participation Amount" shall mean, at any time of
determination, an amount equal to the Pool Balance at such time minus the
Aggregate Series Nominal Liquidation Amount at such time.
"Seller's Percentage" shall mean, with respect to any Collection
Period, the percentage (not less than 0%) equal to 100% minus either (a) the sum
of the "Series Floating Allocation Percentages" for all Series of Notes (as
defined in the related Indenture Supplements) for such Collection Period, when
used with respect to allocations of Interest Collections or (b) the sum of the
"Series Principal Allocation Percentages" for all Series of Notes (as defined in
the related Indenture Supplements) for such Collection Period, when used with
respect to allocations of Principal Collections. For the avoidance of doubt, the
Seller's Percentage with respect to allocations of Miscellaneous Payments shall
be zero.
"Seller's Principal Collections" shall have the meaning specified in
Section 4.04(b).
"Series" shall mean any series of Notes.
"Series 2002-CC Supplement" shall mean the Series 2002-CC Supplement,
dated as of June 1, 2002, among DCWR, DCS and the CARCO Trust Trustee.
"Series Account" shall mean any "Supplemental Account" as defined in
the Indenture.
"Series Allocation Percentage" shall mean, with respect to any Series
of Notes, (a) the "Series Floating Allocation Percentage" for such Series of
Notes (as defined in the related Indenture Supplement), when used with respect
to allocations of Interest Collections and Defaulted Amounts to such Series and
(b) the "Series Principal Allocation Percentage" for such Series of Notes (as
defined in the related Indenture Supplement), when used with respect to
allocations of Principal Collections to such Series, and (c) the "Series
Miscellaneous Allocation Percentage" for such Series of Notes (as defined in the
related Indenture Supplement), when used with respect to allocations of
Miscellaneous Payments to such Series.
"Series Cut-Off Date" shall mean, with respect to any Series, the date
specified as such in the related Indenture Supplement.
"Series Nominal Liquidation Amount" shall mean, with respect to any
Series, unless otherwise specified in the related Indenture Supplement, an
amount equal to the sum of the Nominal Liquidation Amount of the Notes of such
Series plus the Overcollateralization Amount for such Series.
19
"Service Default" shall have the meaning specified in Section 10.01.
"Service Transfer" shall have the meaning specified in Section 10.01.
"Servicer" shall initially mean DCFS, in its capacity as Servicer under
this Agreement, and after any Service Transfer, the Successor Servicer.
"Servicing Criteria" shall mean the servicing criteria set forth in
Item 1122(d) of Regulation AB.
"Servicing Fee" shall have the meaning specified in Section 3.02(a).
"Servicing Officer" shall mean any officer of the Servicer involved in,
or responsible for, the administration and servicing of the Receivables whose
name appears on a list of servicing officers furnished to the Trust and the
Trustee by the Servicer as such list may from time to time be amended.
"Shared Excess Available Principal Amount" shall mean, with respect to
any Series, the amount specified as such in the related Indenture Supplement.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of the McGraw-Hill Companies Inc., or its successor.
"Subcontractor" shall mean any vendor, subcontractor or other Person
that is not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the asset-backed securities market) of Receivables
but performs one or more discrete functions identified in Item 1122(d) of
Regulation AB with respect to the Receivables under the direction or authority
of the Servicer or the Indenture Trustee, as the case may be.
"Subordinated Note" shall mean the subordinated note of the Seller the
form of which is attached hereto as Exhibit J.
"Successor Servicer" shall have the meaning specified in Section
10.02(a).
"Supplemental Certificate" shall mean any certificate issued by the
Trust pursuant to Section 10.10 of the Trust Agreement.
"Tax Opinion" shall mean, with respect to any action, an Opinion of
Counsel to the effect that, for Federal income and Michigan state income and
single business tax purposes, (a) other than in the case of a Designated
Affiliate Transfer, such action will not adversely affect the characterization
of the Notes of any outstanding Series or Class as debt of DCWR (or, in the case
of Section 7.04(b)(iv), following a Designated Affiliate Transfer, the Notes of
all outstanding Series will be characterized as debt of the Designated
Affiliate) and (b) such action will not cause or constitute a taxable event with
respect to any Noteholders or the Trust.
"Transaction Documents" shall mean this Agreement, the Receivables
Purchase Agreement, the Trust Agreement, the Administration Agreement, the
Indenture, the Indenture Supplements, and the underwriting, placement and/or
purchase agreements with respect to the
20
Notes, together with all such other documents and certificates delivered in
connection herewith or therewith.
"Transfer Date" shall have the meaning specified in Section 2.01(b).
"Transfer Deposit Amount" shall mean, with respect to any Receivable
reassigned or assigned to the Seller or the Servicer, as applicable, pursuant to
Section 2.04(c) or Section 3.03, the amounts specified in such Sections.
"Trust" shall mean the DaimlerChrysler Master Owner Trust governed
pursuant to the Trust Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement,
dated as of December 16, 2004, between DCWR and the Owner Trustee, as amended
and supplemented from time to time.
"Trustee" shall mean The Bank of New York, a New York banking
corporation, in its capacity as "Indenture Trustee" under the Indenture, and any
successor thereto in such capacity under the Indenture.
"Trust Termination Date" shall mean the date on which the Trust
dissolves pursuant to Section 7.01 of the Trust Agreement.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in any specified jurisdiction.
"Unallocated Principal Collections" shall have the meaning specified in
Section 4.07.
"US Auto" shall mean U.S. Auto Receivables Company, a Michigan
corporation, and its successors in interest.
"Used Vehicle" shall mean any Vehicle held for sale by a Dealer that is
determined to be a "used" Vehicle in accordance with the Servicer's standard
wholesale servicing practices.
"Vehicle" shall mean an automobile or light-duty truck.
"Vice President" when used with respect to the Seller, Servicer and
DCFS shall mean any vice president whether or not designated by a number or word
or words added before or after the title "vice president".
SECTION 1.02 Other Definitional Provisions.
(a) All capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings ascribed to them in the Trust Agreement,
the Indenture or, with respect to any Series, the related Indenture Supplement,
as applicable.
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(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(d) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; the term
"including" shall mean "including without limitation"; and the term "or" is not
exclusive.
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01 Conveyance of Receivables.
(a) By execution of this Agreement, the Seller does hereby sell,
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided herein), to the Trust on the Effective Date, in the case of
the Existing Accounts, and on the applicable Addition Date, in the case of
Additional Accounts, (i) all of its right, title and interest in, to and under
the Receivables in each Account and all Collateral Security with respect thereto
owned by the Seller at the close of business on the Initial Cut-Off Date, in the
case of the Existing Accounts, and on the applicable Additional Cut-Off Date, in
the case of Additional Accounts, and all monies due or to become due and all
amounts received with respect thereto and all proceeds (including Recoveries)
thereof and (ii) all of the Seller's rights, remedies, powers and privileges
with respect to such Receivables under the Receivables Purchase Agreement
(collectively, the "Purchased Assets"). For the avoidance of doubt, the parties
hereto acknowledge and agree that the Receivables and related Collateral
Security sold and assigned by the Seller on the Effective Date pursuant to this
Section 2.01(a) include all the Receivables and related Collateral Security
originally sold and assigned by DCWR to the CARCO Trust on or prior to the
Effective Date pursuant to the
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Pooling and Servicing Agreement, other than any such receivables and related
collateral security that have been repurchased in accordance with the Pooling
and Servicing Agreement, and the CARCO Trust has sold, transferred, assigned,
set over and otherwise conveyed such Receivables and Collateral Security to the
Trust on the Effective Date.
(b) As of each Business Day prior to the earlier of (i) the occurrence
of an Insolvency Event with respect to the Seller, the Servicer, DCFS or
DaimlerChrysler and (ii) the Trust Termination Date, on which Receivables are
created in the Accounts (a "Transfer Date"), the Seller does hereby sell,
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided herein), to the Trust, all of its right, title and interest
in, to and under the Receivables in each Account (other than any Receivables
created in any Designated Account from and after the applicable Removal
Commencement Date) and all Collateral Security with respect thereto owned by the
Seller at the close of business on such Transfer Date and not theretofore
conveyed to the Trust, all monies due or to become due and all amounts received
with respect thereto and all proceeds (including Recoveries) thereof. Such
property, together with the Collateral Security with respect thereto, shall
collectively constitute part of the Collateral of the Trust that will be pledged
by the Trust to the Trustee pursuant to the Indenture.
(c) The foregoing sale, transfer, assignment, set-over and conveyance
and any subsequent sales, transfers, assignments, set-overs and conveyances do
not constitute, and are not intended to result in, the creation or an assumption
by the Trust, the Owner Trustee, the Trustee, any Agent, any Noteholder or any
Enhancement Provider of any obligation of the Servicer, DCFS, the Seller,
DaimlerChrysler or any other Person in connection with the Accounts, the
Receivables or under any agreement or instrument relating thereto, including any
obligation to any Dealers.
(d) In connection with such sales, the Seller agrees to record and
file, at its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) with respect to the Receivables now existing and
hereafter created for the sale of "tangible chattel paper", "accounts" or
"payment intangibles" (each as defined in Section 9-102 of the UCC as in effect
in the relevant jurisdiction) meeting the requirements of applicable state law
in such manner and in such jurisdictions as are necessary to perfect the sale
and assignment of the Receivables and the Collateral Security to the Trust, and
to deliver a file-stamped copy of such financing statements or other evidence of
such filing to the Trustee on or prior to the Effective Date, in the case of the
Existing Accounts, and (if any additional filing is so necessary) the applicable
Addition Date, in the case of Additional Accounts. The Trustee shall be under no
obligation whatsoever to file such financing statement, or a continuation
statement to such financing statement, or to make any other filing under the UCC
in connection with such sales.
(e) In connection with such sales, the Seller further agrees, at its
own expense, on or prior to the Effective Date, in the case of the Existing
Accounts, the applicable Addition Date, in the case of Additional Accounts, and
the applicable Removal Commencement Date, in the case of Removed Accounts, (x)
to indicate in its computer files and to cause DCFS to indicate in its computer
files as required by the Receivables Purchase Agreement, that the Receivables
created in connection with the Accounts (other than Removed Accounts) have been
sold, and the Collateral Security assigned, to the Seller in accordance with the
Receivables Purchase Agreement, and sold to the Trust pursuant to this
Agreement, and pledged by the Trust to the Trustee for the benefit of the
Noteholders and the other Secured Parties pursuant to the
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Indenture and (y) to deliver to the Trust and the Trustee (or cause DCFS to do
so) a computer file or microfiche or written list containing a true and complete
list of all such Accounts (other than Removed Accounts) specifying for each such
Account, as of the Initial Cut-Off Date, in the case of the Existing Accounts,
and the applicable Additional Cut-Off Date, in the case of Additional Accounts,
(i) its account number, (ii) the aggregate amount of Receivables outstanding in
such Account and (iii) the aggregate amount of Principal Receivables in such
Account. Such file, microfiche or list, as amended and/or supplemented from time
to time to reflect Additional Accounts and Removed Accounts, shall be marked as
Schedule 1 to this Agreement and is hereby incorporated into and made a part of
this Agreement and the Indenture. The Trustee shall be under no obligation
whatsoever to verify the accuracy or completeness of the information contained
in Schedule 1 from time to time.
(f) The parties hereto intend that the transfers of Purchased Assets
effected by this Agreement be sales. Nevertheless, if such transfers are deemed
to be transfers for security, then this Agreement also shall be deemed to be and
hereby is a security agreement within the meaning of the UCC, and the conveyance
by the Seller provided for in this Agreement shall also be deemed to be and
hereby is a grant by the Seller to the Trust of a security interest in all of
the Seller's right, title and interest, whether now owned or hereafter acquired,
in, to and under such Purchased Assets. For tax purposes, the parties hereto
intend that all transfers of Purchased Assets under this Agreement constitute
transfers of such Purchased Assets as security for a loan.
SECTION 2.02 Acceptance by the Trust; Payment for Conveyances.
(a) The Trust hereby acknowledges its acceptance of all right, title
and interest previously held by the Seller to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 2.01 and declares
that it shall hold such right, title and interest subject to the rights of the
Indenture Trustee for the benefit of the Secured Parties as provided herein and
in the Indenture. The Trust further acknowledges that, prior to or
simultaneously with the execution and delivery of this Agreement, the Seller
delivered to the Trust and the Trustee the computer file or microfiche or
written list relating to the Existing Accounts described in Section 2.01(e).
(b) In consideration for the property transferred by the Seller (or by
the CARCO Trust Trustee on behalf of the Seller as provided in the Program
Amendment Agreement) to the Trust on the Effective Date pursuant to Section
2.01(a), the Trust (i) shall cause the Indenture Trustee to deliver, on behalf
of the Trust and the Seller, on the Effective Date the Collateral Certificate to
the CARCO Trust Trustee for cancellation by the CARCO Trust Trustee and (ii)
shall execute, and cause the Owner Trustee to authenticate and deliver to the
order of the Seller on the Effective Date, the DCMOT Certificate pursuant to the
Trust Agreement; it being understood that concurrently with such issuance and
delivery of the DCMOT Certificate to the Seller, the Seller shall have delivered
the CARCO Certificate to the CARCO Trust Trustee for cancellation by the CARCO
Trust Trustee.
(c) In consideration for the property transferred by the Seller to the
Trust on each Addition Date pursuant to Section 2.01(a) and on each Transfer
Date (other than the Effective Date) pursuant to Section 2.01(b), the Trust
shall cause to be paid to the Seller all such funds available to be paid to the
Seller in respect of the Seller's Interest, to the extent specifically
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permitted under this Agreement, the Indenture and the Indenture Supplements; it
being understood that any excess of the aggregate principal balance of the
Receivables transferred on an Addition Date or a Transfer Date (other than the
Effective Date) over the funds available to be paid to the Seller on such date
shall result, to the extent provided in this Agreement, the Indenture and the
Indenture Supplements, in an increase of the Seller's Interest evidenced by the
Seller's Certificates issued pursuant to the Trust Agreement.
SECTION 2.03 Representations and Warranties of the Seller Relating to the
Seller and this Agreement.
The Seller hereby represents and warrants to the Trust as of the
Effective Date and each subsequent Closing Date that:
(a) Organization and Good Standing. The Seller is a limited liability
company duly organized and validly existing and in good standing under the law
of the State of Delaware and has, in all material respects, full power,
authority and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement.
(b) Due Qualification. The Seller is duly qualified to do business and,
where necessary, is in good standing as a foreign company (or is exempt from
such requirement) and has obtained all necessary licenses and approvals in each
jurisdiction in which the conduct of its business requires such qualification
except where the failure to so qualify or obtain licenses or approvals would not
have a material adverse effect on its ability to perform its obligations
hereunder.
(c) Due Authorization. The execution and delivery of this Agreement and
the Related Documents and the consummation of the transactions provided for or
contemplated by this Agreement and the Related Documents, have been duly
authorized by the Seller by all necessary action on the part of the Seller.
(d) No Conflict. The execution and delivery of this Agreement and the
Related Documents, the performance of the transactions contemplated by this
Agreement and the Related Documents and the fulfillment of the terms hereof and
thereof, will not conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a material default under, any indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which the Seller is a party or by which it
or its properties are bound.
(e) No Violation. The execution and delivery of this Agreement and the
Related Documents, the performance of the transactions contemplated by this
Agreement and the Related Documents and the fulfillment of the terms hereof and
thereof applicable to the Seller, will not conflict with or violate any material
Requirements of Law applicable to the Seller.
(f) No Proceedings. There are no proceedings or, to the best knowledge
of the Seller, investigations pending or threatened against the Seller before
any Governmental Authority (i) asserting the invalidity of this Agreement or any
of the Related Documents, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this
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Agreement or the Related Documents, (iii) seeking any determination or ruling
that, in the reasonable judgment of the Seller, would materially and adversely
affect the performance by the Seller of its obligations under this Agreement or
the Related Documents, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this Agreement
or the Related Documents or (v) seeking to affect adversely the income tax
attributes of the Trust under the United States Federal or any State income,
single business or franchise tax systems.
(g) All Consents Required. All appraisals, authorizations, consents,
orders, approvals or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery of this
Agreement and the Related Documents, the performance of the transactions
contemplated by this Agreement and the Related Documents, and the fulfillment of
the terms hereof and thereof, have been obtained.
(h) Enforceability. This Agreement and the Related Documents each
constitutes a legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in equity).
(i) Record of Accounts. As of the Effective Date, in the case of the
Existing Accounts, as of the applicable Addition Date, in the case of the
Additional Accounts, and, as of the applicable Removal Commencement Date, in the
case of Designated Accounts, Schedule 1 to this Agreement is an accurate and
complete listing in all material respects of all the Accounts as of the Initial
Cut-Off Date, the applicable Additional Cut-Off Date or the applicable Removal
Commencement Date, as the case may be, and the information contained therein
with respect to the identity of such Accounts and the Receivables existing
thereunder is true and correct in all material respects as of the Initial
Cut-Off Date, such applicable Additional Cut-Off Date or such Removal
Commencement Date, as the case may be.
(j) Valid Transfer. This Agreement or, in the case of Additional
Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to the Trust of all right, title and interest of the Seller in the
Receivables and the Collateral Security and the proceeds thereof and all of the
Seller's rights, remedies, powers and privileges with respect to the Receivables
under the Receivables Purchase Agreement and, upon the filing of the financing
statements described in Section 2.01 with the Secretary of State of the State of
Delaware and, in the case of the Receivables hereafter created and the proceeds
thereof, upon the creation thereof, the Trust shall have a first priority
perfected ownership interest in such property, subject to the rights of the
Purchased Receivables Owners in any Collateral Security in respect of the
Partial Accounts (other than the Vehicles relating to Principal Receivables
arising in the Partial Accounts), except for Liens permitted under the
Receivables Purchase Agreement. Except as otherwise provided in this Agreement
and except for Liens permitted under the Receivables Purchase Agreement or the
other Transaction Documents, neither the Seller nor any Person claiming through
or under the Seller has any claim to or interest in the Collateral of the Trust.
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The representations and warranties set forth in this Section 2.03 shall
survive the transfer and assignment of the Receivables to the Trust and the
issuance of the Notes. Upon discovery by the Seller, the Servicer, the Trust,
the Owner Trustee, any Agent or the Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties specified above, and to any
Enhancement Providers.
In the event of any breach of any of the representations and warranties
set forth in this Section 2.03 having a material adverse effect on the interests
of the Noteholders, then either the Trustee or the Holders of Notes evidencing
not less than a majority of the aggregate Outstanding Dollar Principal Amount of
all Notes, by notice then given in writing to the Seller (and to the Trustee,
the Trust, any Enhancement Providers and the Servicer if given by the
Noteholders), may direct the Seller to purchase the Noteholders' Interest within
60 days of such notice (or within such longer period as may be specified in such
notice), and the Seller shall be obligated to make such purchase on a Payment
Date occurring within such 60-day period on the terms and conditions set forth
below; provided, however, that no such purchase shall be required to be made if,
by the end of such 60-day period (or such longer period as may be specified),
the representations and warranties set forth in this Section 2.03 shall be
satisfied in all material respects, and any material adverse effect on the
Noteholders' Interest caused thereby shall have been cured. The Seller shall
deposit in the Collection Account in immediately available funds on the Business
Day preceding such Payment Date, in payment for such purchase of the
Noteholders' Interest, the Reassignment Amount for such Payment Date.
Notwithstanding anything to the contrary in this Agreement, such
amounts deposited in the Collection Account shall be applied in accordance with
Section 706 of the Indenture and shall be allocated pro rata among the
then-outstanding Series based on their respective Series Nominal Liquidation
Amounts. If the Trustee or the Noteholders give notice directing the Seller to
purchase the Noteholders' Interest as provided above, the obligation of the
Seller to purchase the Noteholders' Interest pursuant to this Section 2.03 shall
constitute the sole remedy respecting an event of the type specified in the
first sentence of this Section 2.03 available to the Noteholders (or the Trustee
on behalf of the Noteholders).
SECTION 2.04 Representations and Warranties of the Seller Relating to the
Receivables.
(a) Representations and Warranties. The Seller hereby represents and
warrants to the Trust that:
(i) Each Receivable and all Collateral Security existing on the
Effective Date or, in the case of Additional Accounts, on the applicable
Addition Date, and on each Transfer Date, has been conveyed to the Trust
free and clear of any Lien, subject to the rights of the Purchased
Receivables Owners in any Collateral Security in respect of the Partial
Accounts (other than the Vehicles relating to Principal Receivables arising
in the Partial Accounts) and except for Liens permitted under the
Receivables Purchase Agreement.
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(ii) With respect to each Receivable and all Collateral Security
existing on the Effective Date or, in the case of Additional Accounts, on
the applicable Addition Date, and on each Transfer Date, all consents,
licenses, approvals or authorizations of or registrations or declarations
with any Governmental Authority required to be obtained, effected or given
by the Seller in connection with the conveyance of such Receivable or
Collateral Security to the Trust have been duly obtained, effected or given
and are in full force and effect.
(iii) On the Initial Cut-Off Date, the Effective Date and each
subsequent Closing Date, each Existing Account is an Eligible Account and,
in the case of Additional Accounts, on the applicable Additional Cut-Off
Date and each subsequent Closing Date, each such Additional Account is an
Eligible Account.
(iv) On the Effective Date, in the case of the Existing Accounts,
and, in the case of the Additional Accounts, on the applicable Additional
Cut-Off Date, and on each Transfer Date, each Receivable conveyed to the
Trust on such date is an Eligible Receivable or, if such Receivable is not
an Eligible Receivable, such Receivable is conveyed to the Trust in
accordance with Section 2.09.
(b) Notice of Breach. The representations and warranties set forth in
this Section 2.04 shall survive the transfer and assignment of the Receivables
to the Trust and the issuance of the Notes. Upon discovery by the Seller, the
Servicer, the Trust, the Owner Trustee, any Agent or the Trustee of a breach of
any of the representations and warranties set forth in this Section 2.04, the
party discovering such breach shall give prompt written notice to the other
parties specified above, and to any Enhancement Providers.
(c) Reassignment. In the event any representation or warranty under
Section 2.04(a) is not true and correct as of the date specified therein with
respect to any Receivable or Account and such breach has a material adverse
effect on the Noteholders' Interest in any such Receivable or Account, then,
within 30 days (or such longer period as may be agreed to by the Trustee) of the
earlier to occur of the discovery of any such event by the Seller or the
Servicer, or receipt by the Seller or the Servicer of written notice of any such
event given by the Trustee, any Agent or any Enhancement Providers, the Seller
shall accept a reassignment of such Receivable or, in the case of such an untrue
representation or warranty with respect to an Account, all Receivables in such
Account, on the Determination Date immediately succeeding the day of such
discovery or notice on the terms and conditions set forth in the next succeeding
paragraph; provided, however, that no such reassignment shall be required to be
made with respect to such Receivable if, by the end of such 30-day period (or
such longer period as may be agreed to by the Trustee), the breached
representation or warranty shall then be true and correct in all material
respects and any material adverse effect caused thereby shall have been cured.
The Seller shall accept a reassignment of each such Receivable by
directing the Servicer to deduct, subject to the next sentence, the principal
amount of such Receivables from the Pool Balance on or prior to the end of the
Collection Period in which such reassignment obligation arises. If, following
such deduction, the Pool Balance would be less than the Aggregate Series Nominal
Liquidation Amount on the immediately preceding Determination Date (after giving
effect to the allocations, distributions, withdrawals and deposits to be made on
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the Payment Date following such Determination Date), then not later than 12:00
noon on the day on which such reassignment occurs, the Seller shall deposit in
the Collection Account in immediately available funds the amount (the "Transfer
Deposit Amount") by which the Pool Balance would be less than the Aggregate
Series Nominal Liquidation Amount (up to the principal amount of such
Receivables); provided that if the Transfer Deposit Amount is not deposited as
required by this sentence, then the principal amounts of such Receivables shall
only be deducted from the Pool Balance to the extent that the Pool Balance is
not reduced below the Aggregate Series Nominal Liquidation Amount, and the
Receivables the principal amounts of which have not been so deducted shall not
be reassigned to the Seller and shall remain part of the Trust. Upon
reassignment of any such Receivable, but only after payment by the Seller of the
Transfer Deposit Amount, if any, the Trust shall automatically and without
further action be deemed to sell, transfer, assign, set over and otherwise
convey to the Seller, without recourse, representation or warranty, all the
right, title and interest of the Trust in and to such Receivable, all Collateral
Security and all moneys due or to become due with respect thereto and all
proceeds thereof. The Trustee shall execute such documents and instruments of
transfer or assignment and take such other actions as shall reasonably be
requested by the Seller to effect the conveyance of such Receivables pursuant to
this Section. The obligation of the Seller to accept a reassignment of any such
Receivable and to pay any related Transfer Deposit Amount shall constitute the
sole remedy respecting the event giving rise to such obligation available to the
Trust, the Noteholders (or the Trustee on behalf of the Noteholders).
SECTION 2.05 Addition of Accounts.
(a) If, as of the close of business on the last day of any Collection
Period, (i) the Pool Balance on such day is less than the Required Participation
Amount as of the following Payment Date (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on such Payment Date), or
(ii) the result obtained by multiplying (x) the Seller's Participation Amount as
of the following Payment Date (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on such Payment Date), by (y)
the percentage equivalent of the portion of the Seller's Interest represented by
the DCMOT Certificate, is less than 2% of the Pool Balance on such last day,
then the Seller shall, within ten Business Days following the end of such
Collection Period, designate and transfer to the Trust the Receivables (and the
related Collateral Security) of additional Eligible Accounts of the Seller to be
included as Accounts in a sufficient amount such that after giving effect to
such addition (i) the Pool Balance as of the close of business on the Addition
Date is at least equal to such Required Participation Amount or (ii) the result
obtained by multiplying (x) such Seller's Participation Amount by (y) the
percentage equivalent of the portion of the Seller's Interest represented by the
DCMOT Certificate, is at least equal to 2% of such Pool Balance, as the case may
be. The Seller shall satisfy the conditions specified in Section 2.05(d) in
designating such Additional Accounts and conveying the related Receivables to
the Trust. The failure of the Seller to transfer Receivables to the Trust as
provided in this paragraph solely as a result of the unavailability of a
sufficient amount of Eligible Receivables shall not constitute a breach of this
Agreement; provided, however, that any such failure will nevertheless result in
the occurrence of an Early Redemption Event described in each Indenture
Supplement, unless otherwise specified therein with respect to the related
Series or Class.
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(b) The Seller may from time to time, at its sole discretion, subject
to the conditions specified in paragraph (d) below, voluntarily designate
additional Eligible Accounts (including Partial Accounts) to be included as
Accounts and transfer to the Trust the Receivables (and the related Collateral
Security) of such Additional Accounts.
(c) Receivables and Collateral Security from such Additional Accounts
shall be sold to the Trust effective on a date (the "Addition Date") specified
in a written notice provided by the Seller (or the Servicer on its behalf) to
the Trust, the Trustee, the Rating Agencies, any Agent and any Enhancement
Providers specifying the Additional Cut-Off Date and the Addition Date for such
Additional Accounts (the "Addition Notice") on or before the fifth Business Day
but not more than the 30th day prior to the related Addition Date (the "Notice
Date"). The Addition Notice shall also specify whether any such Additional
Accounts are Partial Accounts.
(d) The Seller shall be permitted to convey to the Trust the
Receivables and all Collateral Security related thereto in any Additional
Accounts designated by the Seller as such pursuant to Section 2.05(a) or (b)
only upon satisfaction of each of the following conditions on or prior to the
related Addition Date:
(i) the Seller shall have provided the Trust, the Trustee, any
Agent, the Rating Agencies and any Enhancement Providers with a timely
Addition Notice;
(ii) such Additional Accounts shall all be Eligible Accounts;
(iii) the Seller shall have delivered to the Trust and the Trustee
a duly executed written assignment (which shall be acknowledged and
accepted by the Trustee) in substantially the form of Exhibit B (the
"Assignment") and the computer file or microfiche or written list required
to be delivered pursuant to Section 2.01;
(iv) the Seller shall, to the extent required by Section 4.03,
have deposited in the Collection Account all Collections with respect to
such Additional Accounts since the Additional Cut-Off Date;
(v) (A) no selection procedures believed by the Seller to be
adverse to the interests of the Trust, the Noteholders or any Enhancement
Providers were used in selecting such Additional Accounts; (B) the list of
Additional Accounts delivered pursuant to clause (iii) above is true and
correct in all material respects as of the Additional Cut-Off Date and (C)
as of each of the Notice Date and the Addition Date, the Seller was neither
insolvent nor will be made insolvent by such transfer, and the Seller is
not aware of any pending insolvency;
(vi) the Rating Agency Condition shall have been satisfied with
respect to such addition;
(vii) the addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Early Redemption Event;
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(viii) the Seller shall have delivered to the Trust, the Trustee
and any Enhancement Providers a certificate of a Vice President or more
senior officer confirming (A) the items set forth in paragraphs (ii)
through (vii) above and (B) that the Seller reasonably believes that the
addition of the Receivables arising in such Additional Accounts will not
result in the occurrence of an Early Redemption Event; and
(ix) on or before each Addition Date, the Seller shall have
delivered to the Trust, the Trustee and any Enhancement Providers (A) an
Opinion of Counsel with respect to the Receivables in the Additional
Accounts substantially in the form of Exhibit G-2 and (B) except in the
case of an addition required by Section 2.05(a), a Tax Opinion with respect
to such addition.
(e) The Seller hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in Section 2.05(d)(v). Upon discovery
by the Seller, the Servicer, the Trust, the Owner Trustee, any Agent or the
Trustee of a breach of the foregoing representations and warranties, the party
discovering the breach shall give prompt written notice to the other parties
specified above, and to any Enhancement Providers.
(f) Unless otherwise agreed to by the Rating Agencies, notwithstanding
anything to the contrary in this Agreement, the Seller may from time to time, at
its discretion, and subject only to the limitations specified in this paragraph,
designate Additional Accounts to be added to the Trust. (Additional Accounts
designated to be added to the Trust in accordance with the provisions of this
Section 2.05(f) are referred to herein as "Automatic Additional Accounts".) On
the Addition Date with respect to any Automatic Additional Accounts, the Trust
shall purchase the Receivables in such Automatic Additional Accounts (and such
Automatic Additional Accounts shall be deemed to be Accounts for purposes of
this Agreement) as of the close of business on the applicable Additional Cut-Off
Date, subject to the satisfaction of the following conditions:
(i) such Automatic Additional Accounts shall be Eligible Accounts;
(ii) the Seller shall, to the extent required by Section 4.03,
have deposited in the Collection Account all Collections with respect to
such Automatic Additional Accounts since the Additional Cut-Off Date;
(iii) no selection procedures believed by the Seller to be adverse
to the interests of the Trust, the Noteholders or any Enhancement Providers
were used in selecting such Automatic Additional Accounts;
(iv) as of each of the Additional Cut-Off Date and the Addition
Date, no Insolvency Event with respect to DCFS or the Seller shall have
occurred nor shall the transfer of the Receivables arising in the Automatic
Additional Accounts to the Trust have been made in contemplation of the
occurrence thereof;
(v) the addition of the Receivables arising in the Automatic
Additional Accounts shall not cause an Early Redemption Event or any event
that, after the giving of notice or the lapse of time, would constitute an
Early Redemption Event to occur with respect to any Series;
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(vi) on or before each Addition Date with respect to Automatic
Additional Accounts, the Seller shall have delivered to the Trust, the
Trustee and the Rating Agencies (A) an Opinion of Counsel with respect to
the Receivables in the Automatic Additional Accounts substantially in the
form of Exhibit G-2 to this Agreement and (B) a Tax Opinion with respect to
such addition;
(vii) within ten Business Days of the date on which any such
Receivables are added to the Trust, the Seller shall have delivered to the
Trust and the Trustee a written assignment and a computer file or a
microfiche list containing a true and complete list of the related
Automatic Additional Accounts specifying for each such Account its account
number, the collection status, the aggregate amount outstanding in such
Account and the aggregate amount of Principal Receivables outstanding in
such Account; and
(viii) the Seller shall have delivered to the Trust and the
Trustee an Officers' Certificate of the Seller, dated the Addition Date, to
the effect that conditions (i) through (v) and (vii) above have been
satisfied.
The Seller hereby represents and warrants to the Trust as of the
related Addition Date as to the matters relating to it set forth in paragraphs
(iii) and (iv) above and that the file or list described below is, as of the
applicable Additional Cut-Off Date, true and complete in all material respects.
In connection with the designation of Automatic Additional Accounts to
be added to the Trust, the Seller shall deliver to the Trust and the Trustee (i)
the computer file or microfiche list required to be delivered pursuant to
Section 2.01 with respect to such Automatic Additional Accounts and (ii) a duly
executed written Assignment (which shall be acknowledged and accepted by the
Trustee), substantially in the form of Exhibit B to this Agreement.
Unless each Rating Agency otherwise consents, the number of Automatic
Additional Accounts added to the Trust with respect to any of the three
consecutive Collection Periods beginning in January, April, July and October of
each calendar year shall not exceed 8% of the number of Accounts as of the first
day of the calendar year during which such Collection Periods commence and the
number of Automatic Additional Accounts designated during any such calendar year
shall not exceed 20% of the number of Accounts as of the first day of such
calendar year. On or before the first business day of each Collection Period
beginning in January, April, July and October of each calendar year, the Seller
shall have requested and obtained notification from each Rating Agency of any
limitations to the right of the Seller to designate Eligible Accounts as
Automatic Additional Accounts during any period which includes such Collection
Period. To the extent that Automatic Additional Accounts have been added to the
Trust during the three consecutive Collection Periods ending in the calendar
month prior to such date, on or before January 31, April 30, July 31, October 31
of each calendar year, the Trustee shall have received confirmation from each
Rating Agency that the addition of all Automatic Additional Accounts included as
Accounts during the three consecutive Collection Periods ending in the calendar
month prior to such date shall not have resulted in any applicable Rating Agency
reducing or withdrawing its rating of any outstanding Series or Class of Notes.
If
32
such Rating Agency confirmation with respect to any Automatic Additional
Accounts is not so received, such Automatic Additional Accounts will be removed
from the Trust.
SECTION 2.06 Covenants of the Seller.
The Seller hereby covenants that:
(a) No Liens. Except for the conveyances hereunder, or as provided in
Section 10.10 of the Trust Agreement with respect to Supplemental Certificates,
the Seller will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or (subject to the rights of the Purchased
Receivables Owners with respect to the Collateral Security arising in the
Partial Accounts (other than the Vehicles relating to any Principal Receivables)
and except as permitted under the Receivables Purchase Agreement or the other
Transaction Documents) suffer to exist any Lien on, any Receivable or any
Collateral Security, whether now existing or hereafter created, or any interest
therein, or the Seller's rights, remedies, powers or privileges with respect to
the Receivables under the Receivables Purchase Agreement, or the Seller's
Interest or the Seller's Certificates and the Seller shall defend the right,
title and interest of the Trust in, to and under the Receivables and the
Collateral Security, whether now existing or hereafter created, and such rights,
remedies, powers and privileges, against all claims of third parties claiming
through or under the Seller.
(b) Account Allocations. In the event that the Seller is unable for any
reason to transfer Receivables to the Trust, then the Seller agrees that it
shall allocate, after the occurrence of such event, payments on each Account
with respect to the principal balance of such Account first to the oldest
principal balance of such Account and to have such payments applied as
Collections in accordance with the terms of this Agreement; provided, however,
that, in the case of Partial Accounts, Collections of Principal Receivables
shall be allocated to the Principal Receivables to which such Collections
relate. The parties hereto agree that Non-Principal Receivables, whenever
created, accrued in respect of Principal Receivables which have been conveyed to
the Trust shall continue to be a part of the Trust notwithstanding any cessation
of the transfer of additional Principal Receivables to the Trust and Collections
with respect thereto shall continue to be allocated and paid in accordance with
the terms of this Agreement.
(c) Delivery of Collections. In the event that the Seller, DCFS or any
Affiliate thereof receives payments in respect of Receivables, the Seller and
DCFS agree to pay or cause to be paid to the Servicer or any Successor Servicer
all payments received thereby in respect of the Receivables as soon as
practicable after receipt thereof, but in no event later than two Business Days
after the receipt by the Seller, DCFS or any Affiliate thereof.
(d) Notice of Liens. The Seller shall notify the Trust and the Trustee
promptly after becoming aware of any Lien on any Receivable other than the
conveyances hereunder.
(e) Compliance with Law. The Seller hereby agrees to comply in all
material respects with all Requirements of Law applicable to the Seller.
33
(f) Activities of the Seller. The Seller will not engage in any
business or activity of any kind or enter into any transaction other than (x)
the businesses, activities and transactions contemplated and authorized by this
Agreement or the Related Documents or (y) the business of acquiring, selling or
financing wholesale and retail receivables and related activities and
transactions (such businesses, activities and transactions, collectively,
"Permitted Transactions").
(g) Indebtedness. The Seller will not create, incur or assume any
indebtedness or issue any securities or sell or transfer any receivables to a
trust or other Person which issues securities in respect of any such
receivables, unless (i) any such indebtedness or securities have no recourse to
any assets of the Seller other than the specified assets to which such
indebtedness or securities relate and (ii) the Rating Agency Condition shall
have been satisfied in connection therewith prior to the incurrence or issuance
thereof.
(h) Guarantees. The Seller will not become or remain liable, directly
or contingently, in connection with any indebtedness or other liability of any
other Person, whether by guarantee, endorsement (other than endorsements of
negotiable instruments for deposit or collection in the ordinary course of
business), agreement to purchase or purchase, agreement to supply or advance
funds, or otherwise, except in connection with Permitted Transactions and unless
the Rating Agency Condition shall have been satisfied with respect thereto.
(i) Investments. The Seller will not make or suffer to exist any loans
or advances to, or extend any credit to, or make any investments (by way of
transfer of property, contributions to capital purchase of stock or securities
or evidences of indebtedness, acquisition of the business or assets, or
otherwise) in, any Affiliate, unless prior thereto the Rating Agency Condition
shall have been satisfied with respect thereto; provided, however, that the
Seller shall not be prohibited under this Section 2.06(i) from declaring or
paying any dividends in respect of its common stock.
(j) Stock; Merger. The Seller will not (i) sell any shares of any class
of its capital stock or membership interests, as applicable, to any Person
(other than DCFS and its Affiliates), or enter into any transaction of merger or
consolidation unless (A) the surviving Person of such merger or consolidation
assumes all of the Seller's obligations under this Agreement, (B) the Seller
shall have given the Rating Agencies at least 10 days' prior notice and the
Rating Agency Condition shall have been satisfied with respect to such
transaction and (C) such merger or consolidation does not conflict with any
provisions of the certificate of incorporation or other governing document of
the Seller, or (ii) terminate, liquidate or dissolve itself (or suffer any
termination, liquidation or dissolution), or (iii) acquire or be acquired by any
Person, or (iv) otherwise make (or suffer) any material change in the
organization of or method of conducting its business.
(k) Agreements. The Seller will not become a party to, or permit any of
its properties to be bound by, any indenture, mortgage, instrument, contract,
agreement, lease or other undertaking, except this Agreement, the Related
Documents and any document relating to a Permitted Transaction, or amend or
modify its certificate of incorporation or other governing document or cancel,
terminate, amend, supplement, modify or waive any of the provisions of the
Receivables Purchase Agreement or any of the other Related Documents or request,
consent or
34
agree to or suffer to exist or permit any such cancellation, termination,
amendment, supplement, modification or waiver unless, in any such case, the
Rating Agency Condition shall have been satisfied with respect thereto.
SECTION 2.07 Removal of Eligible Accounts.
(a) On each Determination Date the Seller shall have the right to remove
Accounts from the Trust in the manner prescribed in Section 2.07(b). In
addition, on each Determination Date the Seller shall have the right to remove
Accounts from the Trust and, in connection therewith, repurchase the
then-existing Receivables in such Accounts, in the manner prescribed in Section
2.07(c). In addition, on each Determination Date the Seller shall have the right
to remove DTS Accounts in the manner prescribed in Section 2.07(f). None of the
Receivables that have been removed from the Trust shall be sold or otherwise
transferred to DCFS, and DCFS agrees that, notwithstanding anything to the
contrary in the Receivables Purchase Agreement, it will not purchase or
otherwise acquire such Receivables. For the avoidance of doubt, the Seller shall
not remove Accounts from the Trust more often than once a month.
(b) To remove Accounts, the Seller (or the Servicer on its behalf) shall
take the following actions and make the following determinations:
(i) not less than five Business Days prior to the Removal
Commencement Date, furnish to the Trust, the Trustee, any Agent, any
Enhancement Providers and the Rating Agencies a written notice (the
"Removal Notice") specifying the Determination Date (which may be the
Determination Date on which such notice is given) on which removal of the
Receivables of one or more Accounts will commence (a "Removal Commencement
Date") and the Accounts the future generated Receivables of which are to be
removed from the Trust (the "Designated Accounts");
(ii) determine on the Removal Commencement Date with respect to
such Designated Accounts the aggregate balance of Principal Receivables in
respect of each such Designated Account (the "Designated Balance") and
amend Schedule 1 by delivering to the Trust and the Trustee a computer file
or microfiche or written list containing a true and complete list of the
Removed Accounts specifying for each such Account, as of the Removal
Commencement Date, its account number, the aggregate amount of Receivables
outstanding in such Account and the Designated Balance;
(iii) from and after such Removal Commencement Date, cease to
transfer to the Trust any and all Receivables arising in such Designated
Accounts;
(iv) from and after such Removal Commencement Date, allocate all
Collections of Principal Receivables in respect of each such Designated
Account, first to the oldest outstanding principal balance of such
Designated Account, until the Determination Date on which the Designated
Balance with respect to such Designated Account is reduced to zero (the
"Removal Date");
(v) on each Business Day from and after such Removal Commencement
Date to and until the related Removal Date, allocate (A) to the Trust (to
35
be further allocated pursuant to the terms of this Agreement), Defaulted
Receivables and Collections of Non-Principal Receivables in respect of each
Designated Account, based on the ratio of the aggregate amount of Principal
Receivables in all Designated Accounts sold to the Trust on such Business
Day to the total aggregate amount of Principal Receivables in all such
Designated Accounts on such Business Day and (B) to the Seller, the
remainder of the Defaulted Receivables and Collections of Non-Principal
Receivables in all such Designated Accounts on such Business Day;
(vi) represent and warrant that the removal of any such Eligible
Account on any Removal Date shall not, in the reasonable belief of the
Seller, cause an Early Redemption Event to occur or cause the Pool Balance
to be less than the Required Participation Amount;
(vii) represent and warrant that no selection procedures believed
by the Seller to be adverse to the interests of the Trust, the Noteholders
or any Enhancement Providers were utilized in selecting the Designated
Accounts and that the selection procedures were applied so as to randomly
select the Designated Accounts from the entire population of Accounts;
(viii) represent and warrant as of the Removal Date that the list
of Removed Accounts delivered pursuant to clause (ii) above, as of the
Removal Commencement Date, is true and complete in all material respects;
(ix) represent and warrant that such removal will not result in a
reduction or withdrawal of the rating of any outstanding Series or Class by
the applicable Rating Agency;
(x) deliver to the Trust, the Trustee, each Rating Agency, any
Agent and any Enhancement Providers a Tax Opinion, dated the Removal
Commencement Date, with respect to such removal; and
(xi) on or before the related Removal Commencement Date, deliver
to the Trust, the Trustee, any Agent and any Enhancement Providers an
Officers' Certificate confirming the items set forth in clauses (vi)
through (ix) above and confirming that the Seller reasonably believes that
the removal of the Removed Accounts will not result in the occurrence of an
Early Redemption Event; the Trustee may conclusively rely on such Officers'
Certificate and shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying.
No Designated Accounts shall be so removed if such removal will result
in a reduction or withdrawal of the rating of any outstanding Series or Class by
the applicable Rating Agency.
(c) To remove Accounts and repurchase the then-existing Receivables in
such Accounts, the Seller (or the Servicer on its behalf) shall take the
following actions and make the following determinations:
36
(i) not less than five Business Days prior to the Removal and
Repurchase Date (the "Removal and Repurchase Notice Date"), furnish to the
Trust, the Trustee, any Agent, any Enhancement Providers and the Rating
Agencies a Removal Notice specifying the Designated Accounts which are to
be removed, and the then-existing Receivables in such Designated Accounts
(the "Designated Receivables") which are to be repurchased, from the Trust
and the Determination Date (which may be the Determination Date on which
such notice is given) on which the removal of such Designated Accounts and
the repurchase of such Designated Receivables will occur (a "Removal and
Repurchase Date");
(ii) on the Removal and Repurchase Date with respect to such
Designated Accounts, amend Schedule 1 by delivering to the Trust and the
Trustee a computer file or microfiche or written list containing a true and
complete list of the Removed Accounts specifying for each such Account, as
of the Removal and Repurchase Notice Date, its account number and the
aggregate amount of Receivables outstanding in such Account;
(iii) on the Removal and Repurchase Date, deposit into the
Collection Account funds in an amount equal to the aggregate outstanding
balance of the Repurchased Receivables on such date (the "Repurchased
Receivables Purchase Price"), which funds, notwithstanding anything in this
Agreement to the contrary, will not be released from the Collection Account
other than pursuant to Section 4.05 of this Agreement;
(iv) represent and warrant that the removal of any such Eligible
Account and the repurchase of the Receivables then-existing in such Account
on any Removal and Repurchase Date shall not, in the reasonable belief of
the Seller, cause an Early Redemption Event to occur or cause the Pool
Balance to be less than the Required Participation Amount;
(v) represent and warrant that no selection procedures believed by
the Seller to be adverse to the interests of the Trust, the Noteholders or
any Enhancement Providers were utilized in selecting the Designated
Accounts; further, represent and warrant that the selection procedures were
applied so as to randomly select the Designated Accounts from the entire
population of Accounts;
(vi) represent and warrant as of the Removal and Repurchase Date
that the list of Removed Accounts delivered pursuant to clause (ii) above,
as of the Removal and Repurchase Date, is true and complete in all material
respects;
(vii) represent and warrant that such removal and repurchase will
not result in a reduction or withdrawal of the rating of any outstanding
Series or Class by the applicable Rating Agency;
(viii) deliver to the Trust, the Trustee, each Rating Agency, any
Agent and any Enhancement Providers a Tax Opinion, dated the Removal and
Repurchase Date, with respect to such removal and repurchase; and
37
(ix) on or before the related Removal and Repurchase Date, deliver
to the Trust, the Trustee, any Agent and any Enhancement Providers an
Officers' Certificate confirming the items set forth in clauses (iv)
through (vii) above and confirming that the Seller reasonably believes that
the removal of the Removed Accounts and the repurchase of the Repurchased
Receivables will not result in the occurrence of an Early Redemption Event;
the Trustee may conclusively rely on such Officers' Certificate and shall
have no duty to make inquiries with regard to the matters set forth therein
and shall incur no liability in so relying.
No Designated Accounts shall be so removed and no Designated
Receivables shall be so repurchased unless each Rating Agency shall have
notified the Seller, the Servicer, the Trust and the Trustee in writing that
such removal and repurchase will not result in a reduction or withdrawal of the
rating of any outstanding Series or Class by such Rating Agency.
(d) In the case of any removal of a Designated Account pursuant to
Section 2.07(b), subject to such Section 2.07(b), on the Removal Date with
respect to any such Designated Account, the Seller shall cease to allocate any
Collections therefrom in accordance with Section 2.07(b) and such Designated
Account shall be deemed removed from the Trust for all purposes (a "Removed
Account"). Within five Business Days after the Removal Date, the Trust and the
Trustee shall deliver to the Seller a reassignment in substantially the form of
Exhibit H (the "Reassignment"), together with appropriate UCC financing
statements.
(e) In the case of any removal of Designated Accounts and repurchase of
Designated Receivables pursuant to Section 2.07(c), subject to such Section
2.07(c), on the Removal and Repurchase Date with respect to any such Designated
Account and Designated Receivables, such Designated Account shall be deemed
removed, and such Designated Receivables ("Repurchased Receivables") shall be
deemed repurchased, from the Trust for all purposes and the Trustee shall,
without further action, be deemed to sell, transfer, assign, set over and
otherwise convey to the Seller, effective as of the Removal and Repurchase Date,
without recourse, representation or warranty, all the right, title and interest
of the Trust in and to the Repurchased Receivables, all moneys due and to become
due and all amounts received with respect thereto and all proceeds thereof.
Within five Business Days after the Removal and Repurchase Date, the Trust and
the Trustee shall execute and deliver (but shall have no duty to prepare) to the
Seller a Reassignment, together with appropriate UCC financing statements.
(f) To remove Accounts in respect of which the related Dealer is in
Dealer Trouble Status (each, a "DTS Account"), the Seller (or the Servicer on
its behalf) shall take the following actions and make the following
determinations:
(i) determine on the Business Day on which each such Dealer is
placed in Dealer Trouble Status (the "DTS Removal Commencement Date") the
aggregate balance of Principal Receivables in each such DTS Account (the
"DTS Designated Balance") and amend Schedule 1 by delivering to the Trust
and the Trustee a computer file or microfiche or written list containing
for each such DTS Account, as of the DTS Removal Commencement Date for such
Account, its account number, the aggregate amount of Receivables
outstanding in such DTS Account and the DTS Designated Balance;
38
(ii) from and after such DTS Removal Commencement Date, cease to
transfer to the Trust any and all Receivables arising in such DTS Account;
(iii) from and after each such DTS Removal Commencement Date,
allocate all Collections of Principal Receivables in respect of each such
DTS Account, first, to the oldest outstanding principal balance of such DTS
Account, until the Determination Date on which the DTS Balance with respect
to such Designated Account is reduced to zero (the "DTS Removal Date");
(iv) on each Business Day from and after such DTS Removal
Commencement Date to and until the related DTS Removal Date, allocate (A)
to the Trust (to be further allocated pursuant to the terms of this
Agreement), Defaulted Receivables and Collections of Non-Principal
Receivables in respect of each DTS Account, based on the ratio of the
aggregate amount of Principal Receivables in all DTS Accounts sold to the
Trust on such Business Day to the total aggregate amount of Principal
Receivables in all such DTS Accounts on such Business Day and (B) to the
Seller, the remainder of the Defaulted Receivables and Collections of
Non-Principal Receivables in all such Designated Accounts on such Business
Day;
(v) represent and warrant as of the DTS Removal Date that the DTS
Accounts specified in clause (i) above and the DTS Designated Balances of
such DTS Accounts, as of the DTS Removal Commencement Date, is true and
complete in all material respects;
(vi) the Seller shall have delivered to the Trust, the Trustee,
each Rating Agency and any Enhancement Providers an Officers' Certificate,
dated the Automatic Removal Date, to the effect that the Seller reasonably
believes that such removal will not cause an Early Redemption Event to
occur with respect to any Series; and
(vii) deliver to the Trust, the Trustee, each Rating Agency, any
Agent and any Enhancement Providers a Tax Opinion, dated the DTS Removal
Commencement Date, with respect to such removal.
In the case of any removal of a DTS Account, on the DTS Removal Date
with respect to any such DTS Account, the Seller shall cease to allocate any
Collections therefrom in accordance with this Section 2.07(f) and such DTS
Account shall be deemed removed from the Trust for all purposes (also a "Removed
Account"). Within five Business Days after the DTS Removal Date, the Trust and
the Trustee shall execute and deliver (but shall have no duty to prepare) to the
Seller a Reassignment, together with appropriate UCC financing statements.
(g) Notwithstanding anything in this Agreement to the contrary, the
Seller shall have the right to require the reassignment to it of all the Trust's
right, title and interest in, to and under the Receivables then-existing and
thereafter created, all monies due or to become due and all amounts received
with respect thereto and all proceeds thereof in or with respect to the Accounts
("Automatic Removed Accounts") designated by the Seller, upon satisfaction of
the following conditions:
39
(i) on or before the fifth Business Day immediately preceding the
date upon which such Accounts are to be removed, the Seller shall have
given the Trust, the Trustee, each Enhancement Provider and the Rating
Agencies a Removal Notice specifying the date for removal of the Automatic
Removed Accounts (the "Automatic Removal Date");
(ii) on or prior to the date that is five Business Days after the
Automatic Removal Date, the Seller shall have delivered to the Trust and
the Trustee a computer file or microfiche or written list containing a true
and complete list of the Automatic Removed Accounts specifying for each
such Account, as of the removal notice date, its account number and the
aggregate amount of Receivables outstanding in such Account;
(iii) the Seller shall have represented and warranted as of each
Automatic Removal Date that the list of Automatic Removed Accounts
delivered pursuant to clause (ii) above, as of the Automatic Removal Date,
is true and complete in all material respects and that the selection
procedures for selecting the Automatic Removed Accounts were applied so as
to randomly select the Automatic Removed Accounts from the entire
population of Accounts;
(iv) the Trustee shall have received confirmation from each Rating
Agency that such removal will not result in a reduction or withdrawal of
such Rating Agency's rating of any outstanding Series or Class of
Certificates;
(v) the Seller shall have delivered to the Trust, the Trustee,
each Rating Agency and any Enhancement Providers an Officers' Certificate,
dated the Automatic Removal Date, to the effect that the Seller reasonably
believes that such removal will not cause an Early Redemption Event to
occur with respect to any Series or cause the Pool Balance to be less than
the Required Participation Amount; and
(vi) the Seller shall have delivered to the Trust, the Trustee,
each Rating Agency and any Enhancement Providers a Tax Opinion, dated the
Automatic Removal Date, with respect to such removal.
Notwithstanding the foregoing provisions, the conditions specified in (i) that
relate to Enhancement Providers and Rating Agencies and the conditions specified
in (iv), (v) and (vi) above will not be required if all of the Accounts to be
removed have been liquidated and have zero balances. For the avoidance of doubt,
the Seller shall not remove Accounts from the Trust more than once a month.
Upon satisfaction of the above conditions, on the Automatic Removal
Date all the right, title and interest of the Trust in and to the Receivables
arising in the Automatic Removed Accounts, all monies due and to become due and
all amounts received with respect thereto and all proceeds thereof shall be
deemed removed from the Trust for all purposes and shall be a Removed Account.
40
SECTION 2.08 Removal of Ineligible Accounts.
(a) On any date on which an Account becomes an Ineligible Account
(which date shall be deemed to be the Removal Commencement Date) the Seller
shall commence removal of the Receivables of such Ineligible Account in the
manner prescribed in Section 2.08(b).
(b) With respect to each Account that becomes an Ineligible Account,
the Seller (or the Servicer on its behalf) shall take the following actions and
make the following determinations:
(i) furnish to the Trust, the Trustee, any Agent and any
Enhancement Providers a Removal Notice specifying the Removal Commencement
Date and the Ineligible Accounts to be treated as Designated Accounts;
(ii) determine on the Removal Commencement Date with respect to
such Designated Accounts the Designated Balance with respect to each such
Designated Account and amend Schedule 1 by delivering to the Trust and the
Trustee a computer file or microfiche or written list containing a true and
complete list of the Removed Accounts specifying for each such Account, as
of the Removal Commencement Date, its account number, the aggregate amount
of Receivables outstanding in such Account and the Designated Balance;
(iii) from and after such Removal Commencement Date, cease to
transfer to the Trust any and all Receivables arising in such Designated
Accounts;
(iv) from and after such Removal Commencement Date, allocate
Collections of Principal Receivables in respect of each Designated Account,
first to the oldest outstanding principal balance of such Designated
Account, until the Removal Date with respect thereto; and
(v) on each Business Day from and after such Removal Commencement
Date to and until the related Removal Date, allocate (A) to the Trust (to
be further allocated pursuant to the terms of this Agreement), Defaulted
Receivables and Collections of Non-Principal Receivables in respect of each
Designated Account, based on the ratio of the aggregate amount of Principal
Receivables in all Designated Accounts sold to the Trust on such Business
Day to the total aggregate amount of Principal Receivables in all such
Designated Accounts on such Business Day and (B) to the Seller, the
remainder of the Defaulted Receivables and Collections of Non-Principal
Receivables in all such Designated Accounts on such Business Day.
(c) Subject to Section 2.07(b), on the Removal Date with respect to any
such Designated Account, the Seller shall cease to allocate any Collections
therefrom in accordance with Section 2.07(b) and such Designated Account shall
be deemed removed from the Trust for all purposes (a "Removed Account"). After
the Removal Date and upon the written request of the Servicer, the Trust and the
Trustee shall deliver to the Seller a reassignment in substantially the form of
Exhibit H (the "Reassignment").
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SECTION 2.09 Sale of Ineligible Receivables.
The Seller shall sell to the Trust on each Transfer Date any and all
Receivables arising in any Eligible Accounts that are Ineligible Receivables;
provided that (a) on the Initial Cut-Off Date or, in the case of Receivables
arising in Additional Accounts, on the related Additional Cut-Off Date, and on
the applicable Transfer Date, the Account in which such Receivables arise is an
Eligible Account and (b) the "Incremental Overcollateralization Amount" with
respect to each Series or Class of Notes is adjusted in accordance with the
definition thereof set forth in the related Indenture Supplement.
SECTION 2.10 Representations and Warranties as to the Trust's Security
Interest in the Receivables.
The Seller makes the following representations and warranties to the
Trust as of the Effective Date and each Transfer Date:
(a) Except as may be expressly permitted herein or in the other
Transaction Documents, this Agreement creates a valid and continuing security
interest (as defined in the UCC) in the Receivables in favor of the Trust, which
security interest is prior to all other Liens and is enforceable as such against
creditors of and purchasers from the Seller.
(b) The Receivables constitute "tangible chattel paper", "accounts" or
"payment intangibles" within the meaning of Article 9 of the UCC.
(c) The Seller has taken all necessary steps to perfect its security
interest (if any) against account debtors on the Receivables in any property
securing the Receivables.
(d) The Seller owns and has good and marketable title to the
Receivables free and clear of any Lien of any Person, except as permitted under
the Receivables Purchase Agreement.
(e) The Seller has caused or will have caused, within ten days after
the date of execution of this Agreement, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the security interest in the Receivables
granted to the Trust hereunder.
(f) Other than the security interest granted to the Trust pursuant to
this Agreement, the Seller has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Receivables. The Seller has not
authorized the filing of and is not aware of any financing statements against
the Seller that include a description of collateral covering the Receivables
other than any financing statement relating to the security interest granted to
the Trust hereunder or that has been terminated. The Seller is not aware of any
judgment or tax lien filings against the Seller.
(g) The Servicer as custodian for the Trust has in its possession all
original copies of the contracts that constitute or evidence the Receivables,
and will hold all such contracts for the benefit of the Trustee. The contracts
that constitute or evidence the Receivables do not have any marks or notations
indicating that they have been pledged, assigned or otherwise
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conveyed to any Person other than the Trust. All financing statements filed or
to be filed against the Seller in favor of the Trust in connection herewith and
describing the Receivables contain a statement to the following effect: "A
purchase of or security interest in any collateral described in this financing
statement will violate the rights of the Secured Party".
(h) The Seller has received all consents and approvals (if any)
required by the terms of the Receivables to the sale of the Receivables
hereunder to the Trust.
The representations and warranties set forth in this Section 2.10 shall
survive the termination of this Agreement and the issuance of the Notes. The
representations and warranties set forth in this Section 2.10 may not be waived
or amended except upon satisfaction of the Rating Agency Condition. The Seller
covenants and agrees to take such actions as are necessary to maintain the first
priority perfected security interest of the Trust in the Receivables.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Acceptance of Appointment and Other Matters Relating to the
Servicer.
(a) The Servicer shall service and administer the Receivables, shall
collect payments due under the Receivables and shall charge-off as uncollectible
Receivables, all in accordance with its customary and usual servicing procedures
for servicing wholesale receivables comparable to the Receivables which the
Servicer services for its own account and in accordance with the Floorplan
Financing Guidelines. The Servicer shall have full power and authority, acting
alone or through any party properly designated by it hereunder, to do any and
all things in connection with such servicing and administration which it may
deem necessary or desirable. Without limiting the generality of the foregoing
and subject to Section 10.01, the Servicer is hereby authorized and empowered,
unless such power and authority is revoked by the Trustee on account of the
occurrence of a Service Default pursuant to Section 10.01, (i) to instruct the
Trustee to make withdrawals and payments from the Collection Account, the Excess
Funding Account and any Series Account as set forth in this Agreement, the
Indenture or any Indenture Supplement, (ii) to instruct the Trustee to take any
action required or permitted under any Enhancement Agreement, (iii) to execute
and deliver, on behalf of the Trust, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable Requirements of Law, to commence enforcement
proceedings with respect to such Receivables, (iv) to make any filings, reports,
notices, applications, registrations with, and seek any consents or
authorizations from, the Securities and Exchange Commission and any State
securities authority on behalf of the Trust as may be necessary or advisable to
comply with any Federal or State securities laws or reporting requirement, and
(v) to delegate certain of its servicing, collection, enforcement and
administrative duties hereunder with respect to the Accounts and the Receivables
to any Person who agrees to conduct such duties in accordance with the Floorplan
Financing Guidelines and this Agreement; provided, however, that the Servicer
shall notify the Trust, the Trustee, the Rating Agencies, any Agent and any
Enhancement Providers in writing of any such delegation of
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its duties which is not in the ordinary course of its business, that no
delegation will relieve the Servicer of its liability and responsibility with
respect to such duties and that the Rating Agency Condition shall have been
satisfied with respect to any such delegation. The Trustee or the Owner Trustee,
on behalf of the Trust, shall furnish the Servicer, at its written request
therefor, with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder.
(b) In the event that the Seller is unable for any reason to transfer
Receivables to the Trust in accordance with the provisions of this Agreement
(including by reason of an Insolvency Event occurring with respect to the
Seller, the Servicer, DCFS or DaimlerChrysler, or any court of competent
jurisdiction ordering that the Seller not transfer any additional Principal
Receivables to the Trust) then, in any such event, the Servicer agrees (i) to
give prompt written notice thereof to the Trust, the Trustee, any Enhancement
Providers, any Agent and each Rating Agency and (ii) that it shall in any such
event allocate after the occurrence of such event, payments on each Account with
respect to the principal balance of such Account first to the oldest principal
balance of such Account, subject to the proviso set forth in Section 2.06(b),
and to have such payments applied as Collections in accordance with Sections
4.03 and 4.04. The parties hereto agree that Non-Principal Receivables, whenever
created, accrued in respect of Principal Receivables which have been conveyed to
the Trust shall continue to be a part of the corpus of the Trust notwithstanding
any cessation of the transfer of additional Principal Receivables to the Trust
and Collections with respect thereto shall continue to be allocated and paid in
accordance with the terms of this Agreement.
(c) The Servicer shall not, and any Successor Servicer shall not be
obligated to, use separate servicing procedures, offices, employees or accounts
for servicing the Receivables from the procedures, offices, employees and
accounts used by the Servicer in connection with servicing other wholesale
receivables.
(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables in accordance with the
Floorplan Financing Agreements relating to the Accounts and the Floorplan
Financing Guidelines, except insofar as any failure to so comply or perform
would not materially and adversely affect the rights of the Trust, the
Noteholders or any Enhancement Providers. Subject to compliance with all
Requirements of Law, the Servicer (or DCFS) may change the terms and provisions
of the Floorplan Financing Agreements or the Floorplan Financing Guidelines in
any respect (including the calculation of the amount or the timing of
charge-offs and the rate of the finance charge assessed thereon), only if (i) as
a result of such change, in the reasonable judgment of the Servicer no Early
Redemption Event will occur at any time and none of the Enhancement Providers,
if any, or the Noteholders shall be adversely affected, (ii) such change is made
applicable to the comparable segment of wholesale accounts owned or serviced by
the Servicer which have characteristics the same as, or substantially similar
to, the Accounts which are the subject of such change and (iii) in the case of a
reduction in the rate of such finance charges, the Servicer (or DCFS) does not
reasonably expect any such reduction to result in the Net Receivables Rate for
any Collection Period being less than the weighted average of the sum of the
"Note Interest Rates" and the applicable rate used to calculate the Aggregate
Series Servicing Fee for all outstanding Series for the related "Interest
Period" (each such term as defined in the related Indenture Supplement).
44
(e) On behalf of the Trust (to the extent of the Trust's interest
therein), the Servicer hereby agrees that it holds in trust any document in its
possession evidencing or securing a Receivable and necessary for its servicing
thereof pursuant to this Agreement. The Servicer acknowledges that it holds any
documents relating to the Receivables in its possession as agent and bailee and
custodian for the use and benefit of the Trust and the Trustee.
SECTION 3.02 Servicing Compensation.
(a) As full compensation for its servicing activities hereunder and
reimbursement for its expenses as set forth in the immediately following
paragraph, the Servicer shall be entitled to receive the Servicing Fee on each
Payment Date on or prior to the Trust Termination Date payable in arrears. The
"Servicing Fee" payable to the Servicer on each Payment Date in respect of any
Collection Period shall equal the product of (a) the Monthly Servicing Fee Rate
and (b) the Pool Balance as of the last day of the Collection Period second
preceding such Payment Date. A portion of the Servicing Fee shall be allocated
to each Series of Notes in accordance with the related Indenture Supplement. The
portion of the Servicing Fee so allocated to any Series of Notes shall be paid
in accordance with the related Indenture Supplement only to the extent of funds
available for such payment pursuant to such Indenture Supplement. The sum of the
portions of the Servicing Fee allocable to all Series of Notes is referred to as
the "Aggregate Series Servicing Fee". The remainder of the Servicing Fee that is
not otherwise allocated to any Series of Notes shall be paid by the Seller and
in no event shall the Trust, the Trustee or the Noteholders be liable for the
share of the Servicing Fee to be paid by the Seller.
(b) The Servicer's expenses include the amounts due to the Trustee
pursuant to Section 807 of the Indenture and the reasonable fees and
disbursements of independent accountants and all other expenses incurred by the
Servicer in connection with its activities hereunder, and including all other
fees and expenses of the Trust not expressly stated herein to be for the account
of the Noteholders. The Servicer shall be required to pay such expenses for its
own account, and shall not be entitled to any payment therefor other than the
Servicing Fee. The Servicer will be solely responsible for all fees and expenses
incurred by or on behalf of the Servicer in connection herewith and the Servicer
will not be entitled to any fee or other payment from, or claim on, any of the
Collateral of the Trust (other than the Servicing Fee).
(c) The Servicer will be permitted, in its sole discretion, to waive
all or any portion of the Servicing Fee for any Payment Date by notice to the
Trustee on or before the related Determination Date; provided that the Servicer
believes that sufficient Collections of Non-Principal Receivables will be
available on any future Payment Date to pay the Aggregate Series Servicing Fee
relating to the waived Servicing Fee. If the Servicer so waives all or any
portion of the Servicing Fee for any Payment Date, the Servicing Fee and the
Aggregate Series Servicing Fee for such Payment Date shall be deemed to be
reduced by the amount so waived for all purposes of this Agreement, the
Indenture and the Indenture Supplements; provided, however, that such Aggregate
Series Servicing Fee shall be paid on a future Payment Date solely to the extent
amounts are available therefor pursuant to the Indenture Supplements; provided,
further, that, to the extent any such waived Aggregate Series Servicing Fee is
so paid, the related portion of the Servicing Fee to be paid by the Seller shall
be paid by the Seller to the Servicer.
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SECTION 3.03 Representations, Warranties and Covenants of the Servicer.
(a) DCFS, as Servicer, hereby makes, and any Successor Servicer by its
appointment hereunder shall make, on the Effective Date and each subsequent
Closing Date (and on the date of any such appointment) the following
representations, warranties and covenants:
(i) Organization and Good Standing. Such party is a limited
liability company duly organized, validly existing and in good standing
under the applicable laws of the state of its formation and has, in all
material respects, full corporate power, authority and legal rights to own
its properties and conduct its wholesale receivable servicing business as
such properties are presently owned and as such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement.
(ii) Due Qualification. Such party is duly qualified to do
business and is in good standing as a foreign limited liability company (or
is exempt from such requirements) and has obtained all necessary licenses
and approvals in each jurisdiction in which the servicing of the
Receivables as required by this Agreement requires such qualification
except where the failure to so qualify or obtain licenses or approvals
would not have a material adverse effect on its ability to perform its
obligations hereunder.
(iii) Due Authorization. The execution, delivery, and performance
of this Agreement has been duly authorized by such party by all necessary
corporate action on the part thereof.
(iv) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of such party, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereinafter in effect, affecting the enforcement of creditors' rights and
except as such enforceability may be limited by general principles of
equity (whether considered in a proceeding at law or in equity).
(v) No Violation. The execution and delivery of this Agreement by
such party, the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof and thereof applicable to
such party will not conflict with, violate, result in any breach of any of
the material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a material default under, any Requirement of Law
applicable to such party or any indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which such party is a party or by
which it is bound.
(vi) No Proceedings. There are no proceedings or, to the best
knowledge of such party, investigations, pending or threatened against such
party before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality seeking to prevent the issuance of
the Notes or the consummation of any of the transactions contemplated by
this Agreement, seeking any determination or ruling that, in the reasonable
judgment of such party, would materially and adversely affect the
46
performance by such party of its obligations under this Agreement, or
seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement.
(vii) Compliance with Requirements of Law. Such party shall duly
satisfy all obligations on its part to be fulfilled under or in connection
with the Receivables and the Accounts, will maintain in effect all
qualifications required under Requirements of Law in order to service
properly the Receivables and the Accounts and will comply in all material
respects with all Requirements of Law in connection with servicing the
Receivables and the Accounts the failure to comply with which would have a
material adverse effect on the interests of the Trust, the Noteholders or
any Enhancement Providers.
(viii) No Rescission or Cancellation. Such party shall not permit
any rescission or cancellation of a Receivable except as ordered by a court
of competent jurisdiction or other Governmental Authority.
(ix) Protection of Secured Parties' Rights. Such party shall take
no action, nor omit to take any action, which would impair the rights of
the Trust, the Noteholders or any Enhancement Providers in the Receivables
nor shall it reschedule, revise or defer payments due on any Receivable
except in accordance with the Floorplan Financing Guidelines.
(x) Servicer Concentration Account. The Servicer maintains deposit
accounts (collectively, the "Concentration Account") into which it shall
deposit all amounts paid by the Dealers under Floorplan Financing
Agreements. The Servicer agrees (i) that it will not change this method of
collection without the prior written consent of any Enhancement Providers
and any Agents; (ii) with respect to amounts deposited into the
Concentration Account in respect of a particular day, that it will not
transfer such amounts from the Concentration Account until the Servicer has
posted all Collections in respect of the Receivables for such day and (iii)
concurrently with the transfer of amounts from the Concentration Account in
respect of a particular day, the Servicer will make the deposits and
transfers required by the terms of this Agreement for such day.
(xi) Negative Pledge. Except for the conveyance hereunder to the
Trust and the Liens permitted under the Transaction Documents, the Servicer
will not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on, any Receivable sold
and assigned to the Trust, whether now existing or hereafter created, or
any interest therein, and the Servicer shall defend the rights, title and
interest of the Trust in, to and under any Receivable sold and assigned to
the Trust, whether now existing or hereafter created, against all claims of
third parties claiming through or under the Seller or the Servicer.
(b) Notice of Breach. The representations and warranties set forth in
this Section 3.03 shall survive the transfer and assignment of the Receivables
to the Trust and the issuance of the Notes. Upon discovery by the Seller, the
Servicer, the Trust, the Owner Trustee,
47
any Agent or the Trustee of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other parties specified above, and to any Enhancement Providers.
(c) Purchase. In the event any representation or warranty under Section
3.03(a)(vii), (viii) or (ix) is not true and correct in any material respect as
of the date specified therein with respect to any Receivable or Account and such
breach has a material adverse effect on the Noteholders' Interest in such
Receivable, then, within 30 days (or such longer period as may be agreed to by
the Trustee) of the earlier to occur of the discovery of any such event by the
Seller or the Servicer, or receipt by the Seller or the Servicer of written
notice of any such event given by the Trustee or any Enhancement Providers, the
Servicer shall purchase such Receivable or, in the case of an untrue
representation with respect to an Account, all Receivables in such Account, on
the Determination Date immediately succeeding the expiration of such 30-day
period on the terms and conditions set forth in the next succeeding paragraph;
provided, however, that no such purchase shall be required to be made with
respect to such Receivable if, by the end of such 30-day period (or such longer
period as may be agreed to by the Trustee) the breached representation or
warranty shall then be true and correct in all material respects and any
material adverse effect caused thereby shall have been cured. The Servicer shall
effect such purchase by depositing in the Collection Account in immediately
available funds an amount equal to the Purchase Price of such Receivable. Any
such deposit of such Purchase Price into the Collection Account shall be
considered a Transfer Deposit Amount and shall be applied in accordance with the
terms of this Agreement.
Upon each such payment of such Purchase Price, the Trust shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Servicer, without recourse, representation
or warranty, all right, title and interest of the Trust in and to such
Receivables, all monies due or to become due with respect thereto and all
proceeds thereof and the related Collateral Security. The Trustee shall execute
such documents and instruments of transfer or assignment and take such other
actions as shall be reasonably requested by the Servicer to effect the
conveyance of any such Receivables pursuant to this Section. The obligation of
the Servicer to purchase such Receivables, and to make the deposits required to
be made to the Collection Account as provided in the preceding paragraph, shall
constitute the sole remedy respecting the event giving rise to such obligation
available to the Trust, the Noteholders (or the Trustee on behalf of
Noteholders).
SECTION 3.04 Reports and Instructions for the Trustee.
Pursuant to Section 907 of the Indenture, the Servicer will cooperate
with the Trust in completing and delivering to the Indenture Trustee (with a
copy to each Note Rating Agency) the Monthly Noteholders' Statements provided
for therein. Pursuant to Section 908 of the Indenture, the Servicer will
cooperate with the Trust in completing and delivering to the Indenture Trustee
the Payment Instructions provided for therein. Subject to the terms of this
Agreement, the Servicer shall calculate certain of the amounts and percentages
to be included in the Monthly Noteholders' Statements and the Payment
Instructions.
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SECTION 3.05 Annual Servicer's Certificate.
The Servicer will deliver to the Rating Agencies, the Trustee, the
Trust, any Agent and any Enhancement Providers on or before March 31 of each
calendar year, beginning with March 31, 2005, an Officers' Certificate
substantially in the form of Exhibit C stating that (a) a review of the
activities of the Servicer during the preceding calendar year and of its
performance under this Agreement was made under the supervision of the officer
signing such certificate and (b) to the best of such officer's knowledge, based
on such review, the Servicer has performed in all material respects its
obligations under this Agreement throughout such year, or, if there has been a
material default in the performance of any such obligation, specifying each such
default known to such officer and the nature and status thereof. A copy of such
certificate may be obtained by any Noteholder by a request in writing to the
Trustee addressed to the Corporate Trust Office. Notwithstanding anything to the
contrary in this Section 3.05, the Servicer, in its sole discretion, may
deliver, in lieu of (or in addition to) the Officers' Certificate referred to
above in this Section 3.05, the report on compliance with servicing criteria set
forth in Article XI that would be required to be filed in respect of the Trust
under the Exchange Act if periodic reports under Section 15(d) of the Exchange
Act, or any successor provision thereto, were required to be filed in respect of
the Trust.
SECTION 3.06 Annual Independent Public Accountants' Servicing Report.
The Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer or to the
Seller, to deliver to the Trustee, the Trust, the Rating Agencies, each Agent
and each Enhancement Provider on or before March 31 of each year, beginning
March 31, 2005, a report addressed to the Servicer and to the Trustee, to the
effect that such firm has examined the financial statements of the Servicer or,
if applicable, the parent corporation of the Servicer, and issued its report
thereon and that such examination: (a) was made in accordance with generally
accepted auditing standards, and accordingly included such tests of the
accounting records and such other auditing procedures as such firm considered
necessary in the circumstances, (b) included tests relating to wholesale
receivables (including financing arrangements with automobile dealers to finance
their automobile and light-duty truck inventory) serviced for others in
accordance with the requirements of the Uniform Single Attestation Program for
Mortgage Bankers, to the extent the procedures in such program are applicable to
the servicing obligations set forth in this Agreement and (c) except as
described in the report, disclosed no exceptions or errors in the records
relating to wholesale receivables (including financing arrangements with
automobile dealers to finance their automobile and light-duty truck inventory)
serviced for others that, in the firm's opinion, paragraph four of such Uniform
Single Attestation Program requires such firm to report. A copy of such report
may be obtained by any Noteholder by a request in writing to the Trustee
addressed to the Corporate Trust Office. Notwithstanding anything to the
contrary in this Section 3.06, the Servicer, in its sole discretion, may
deliver, in lieu of the accountants' report referred to above in this Section
3.06, the attestation report of a registered public accounting firm set forth in
Article XI that would be required to be filed in respect of the Trust under the
Exchange Act if periodic reports under Section 15(d) of the Exchange Act, or any
successor provision thereto, were required to be filed in respect of the Trust.
49
SECTION 3.07 Tax Treatment.
The Seller has entered into this Agreement with the intention that the
Notes will qualify under applicable tax law as indebtedness secured by the
Receivables. The Seller agrees to treat the Notes as indebtedness secured by the
Receivables for Federal income taxes, state and local income and franchise
taxes, Michigan Single Business tax and any other taxes imposed on or measured
by income.
SECTION 3.08 Notices to DCFS.
In the event DCFS is no longer acting as Servicer, any Successor
Servicer appointed pursuant to Section 10.02 shall deliver or make available to
DCFS, as the case may be, each certificate and report required to be prepared,
forwarded or delivered thereafter pursuant to Sections 3.04, 3.05 and 3.06.
SECTION 3.09 Adjustments.
(a) The Servicer shall adjust downward, subject to the following
sentence, the amount of any Principal Receivable because of a rebate, refund,
credit adjustment or billing error to a Dealer, or because such Receivable was
created in respect of a Vehicle which was refused or returned by a Dealer. If,
following any such adjustment downward, the Pool Balance would be less than the
Aggregate Series Nominal Liquidation Amount on the immediately preceding
Determination Date (after giving effect to the allocations, distributions,
withdrawals and deposits to be made on the Payment Date following such
Determination Date), then the Seller shall be required to pay an amount equal to
such deficiency (up to the amount of such adjustment) into the Collection
Account on the Business Day on which such adjustment or reduction occurs (each
such payment, an "Adjustment Payment"). If the Seller shall fail to make any
deposit to the Collection Account with respect to such Adjustment Payment or
portion thereof by the Determination Date relating to the Collection Period with
respect to which such Adjustment Payment is payable, the amount of such
Adjustment Payment or portion thereof shall be allocated on such related
Determination Date pro rata among the then-outstanding Series based on their
respective Series Nominal Liquidation Amounts for the Collection Period with
respect to which such deposit should have been made.
(b) If (i) the Servicer makes a deposit into the Collection Account in
respect of a Collection of a Receivable and such collection was received by the
Servicer in the form of a check which is not honored for any reason or (ii) the
Servicer makes a mistake with respect to the amount of any Collection and
deposits an amount that is less than or more than the actual amount of such
Collection, the Servicer shall appropriately adjust the amount subsequently
deposited into the Collection Account to reflect such dishonored check or
mistake. Any Receivable in respect of which a dishonored check is received shall
be deemed not to have been paid.
SECTION 3.10 Dealer Concentrations.
(a) On the last day of each Collection Period, the Servicer shall, for
purposes of determining the Required Participation Percentage for any Series,
determine (a) if the aggregate amount of Principal Receivables due from either
AutoNation, Inc. and its affiliates or
50
United Auto Group, Inc. and its affiliates at the close of business on such last
day is greater than 4% of the Pool Balance on such last day and (b) if the
aggregate amount of Principal Receivables due from any other Dealer or group of
affiliated Dealers at the close of business on such last day is greater than
1.5% of the Pool Balance on such last day. The Servicer shall promptly provide
the Trust and the Trustee a report setting forth the basis for such
determination. The Trustee upon request from any Rating Agency will make such
report available to such Rating Agency.
(b) On the last day of each Collection Period, the Servicer shall, for
purposes of determining the Dealer Overconcentrations that are used to calculate
the "Incremental Overcollateralization Amount" (as defined in the related
Indenture Supplement) for any Series, determine (a) if the aggregate amount of
Principal Receivables due from either AutoNation, Inc. and its affiliates or
United Auto Group, Inc. and its affiliates at the close of business on such last
day is greater than 4% of the Pool Balance on such last day and (b) if the
aggregate amount of Principal Receivables due from any other Dealer or group of
affiliated Dealers at the close of business on such last day is greater than 2%
of the Pool Balance on such last day. The Servicer shall promptly provide the
Trust and the Trustee a report setting forth the basis for such determination.
The Trustee upon request from any Rating Agency will make such report available
to such Rating Agency.
ARTICLE IV
DEPOSIT, ALLOCATION AND
APPLICATION OF COLLECTIONS AND OTHER AMOUNTS
SECTION 4.01 Interests in Receivables and Other Collateral.
The Notes issued by the Trust shall represent obligations of
the Trust secured by the Collateral, which, with respect to each Series or
Class, will consist of the right to receive, to the extent necessary to make the
required payments with respect to such Series or Class at the times and in the
amounts specified in the related Indenture Supplement, (i) the portion of
Collections allocable to such Series or Class pursuant to this Agreement, the
Indenture and the related Indenture Supplement, (ii) the funds and other
property credited to the Collection Account and the Excess Funding Account (or
any subaccounts thereof) allocable to such Series or Class pursuant to this
Agreement, the Indenture and such Indenture Supplement, (iii) funds and other
property credited to any related Series Account and (iv) funds available
pursuant to any related Enhancement Agreement (such property collectively, with
respect to all Series and all Classes, the "Noteholders' Interest"); it being
understood that the Notes of any Series or Class shall not represent any
interest in any Series Account or Enhancement Agreement for the benefit of any
other Series or Class. The Seller's Certificates shall represent the ownership
interest in the remainder of the Collateral and other property of the Trust not
allocated pursuant to this Agreement, the Indenture or any Indenture Supplement
to the Noteholders' Interest and shall include the right to receive Collections
with respect to the Receivables and other amounts at the times and in the
amounts specified in this Agreement, the Indenture or any Indenture Supplement
to be released to the Trust (the "Seller's Interest"); provided, however, that
the Seller's Certificates shall not represent any interest in the Collection
Account, the Excess Funding Account, any Series Account or any Enhancement
Agreement, except as specifically provided in this Agreement, the Indenture or
any Indenture Supplement.
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SECTION 4.02 Deposits of Collections into the Collection Account.
(a) From and after the Effective Date, the Servicer shall no longer
deposit Collections into the CARCO Collection Account, and instead shall deposit
Collections directly into the Collection Account established and maintained in
the name of the Trustee pursuant to Section 402(a) of the Indenture. The
Servicer shall make deposits into the Collection Account at such times and in
such amounts as specified below in this Section 4.02.
(b) Except as otherwise provided in Section 4.02(c), the Servicer shall
deposit Collections into the Collection Account as promptly as possible after
the Date of Processing of such Collections, but in no event later than the
second Business Day after such Date of Processing.
(c) Notwithstanding anything in this Agreement to the contrary, for so
long as (i) DCFS remains the Servicer hereunder, (ii) no Service Default has
occurred and is continuing and (iii)(x) DCFS maintains a short-term rating of at
least A-1 by Standard & Poor's and P-1 by Moody's (and has maintained such
short-term ratings for five Business Days following any reduction of either such
rating), (y) DCFS arranges for and maintains a letter of credit or other form of
enhancement in respect of the Servicer's obligations to make deposits of
collections on the Receivables in the Collection Account that is acceptable in
form and substance to each Rating Agency and any Agents or (z) DCFS otherwise
obtains the Rating Agency confirmations described below, then, subject to any
limitations in the confirmations described below, the Servicer need not make the
daily deposits of Collections into the Collection Account as provided in this
Section 4.02, but may make a single deposit into the Collection Account in
same-day or next-day funds not later than 11:00 A.M., New York City time, on the
Payment Date in a net amount equal to the amount which would have been on
deposit with respect to the immediately preceding Collection Period in the
Collection Account; provided, however, that prior to ceasing daily deposits as
described above the Seller shall have delivered to the Trustee written
confirmation from each of the Rating Agencies that the failure by DCFS to make
daily deposits will not result in a reduction or withdrawal of the rating of any
outstanding Series or Class. Notwithstanding anything to the contrary in this
Section 4.02(c), if DCFS no longer maintains a short-term rating from either
Standard & Poor's or Moody's, DCFS may continue to make monthly net deposits of
Collections into the Collection Account in accordance with this Section 4.02(c)
so long as (i) DCFS remains the Servicer hereunder, (ii) no Service Default has
occurred and is continuing and (iii) DaimlerChrysler North America Holding
Corporation maintains a short-term rating of at least A-1 by Standard & Poor's
and P-1 by Moody's (and has maintained such short-term ratings for five Business
Days following any reduction of either such rating).
(d) Subject to Section 4.04, but notwithstanding anything else in this
Agreement to the contrary, with respect to any Collection Period, whether the
Servicer is required to make deposits of Collections pursuant to paragraph (b)
or (c) above, (i) the Servicer will only be required to deposit Collections into
the Collection Account up to the aggregate amount of Collections required to be
deposited into the Excess Funding Account or any Series Account or, without
duplication, distributed on the related Payment Date to Noteholders, to any
Agent or to any Enhancement Provider pursuant to the terms of the Indenture or
any Indenture Supplement or Enhancement Agreement and (ii) if at any time prior
to such Payment Date the amount of Collections deposited in the Collection
Account exceeds the amount required to be
52
deposited pursuant to clause (i) above, the Servicer will be permitted to
withdraw the excess from the Collection Account.
(e) Pursuant to the authority granted to the Servicer in Section
3.01(a), the Servicer shall have the power, revocable by the Trustee, to
instruct the Trustee to make withdrawals and payments from the Collection
Account for the purposes of carrying out the Servicer's or the Trustee's duties
specified in this Agreement, the Indenture or an Indenture Supplement, as the
case may be.
SECTION 4.03 Allocations of Collections and Other Amounts to Each Series.
(a) All Interest Collections, Principal Collections, Miscellaneous
Payments and Defaulted Amounts will be allocated to each Series from and after
the related Series Cut-Off Date according to the applicable Series Allocation
Percentage for such Series, as specified in the related Indenture Supplement.
Interest Collections, Principal Collections and Miscellaneous Payments so
allocated to any Series will not be available for the benefit of any other
Series, except to the extent expressly provided in this Agreement, the Indenture
or the related Indenture Supplements, as the case may be. Allocations of
Interest Collections, Principal Collections and Miscellaneous Payments to be
performed by the Servicer (i) with respect to each Series and (ii) if
applicable, among the Classes of a Series and any related Enhancement Provider
will be set forth in the related Indenture Supplement or Supplements. The
application of such allocated Interest Collections, Principal Collections and
Miscellaneous Payments will also be set forth in the related Indenture
Supplement or Supplements.
(b) For purposes of determining each Series' Series Allocation
Percentage in connection with the allocation of Interest Collections, Principal
Collections, Miscellaneous Payments and Defaulted Amounts for the specified
Collection Period:
(i) unless the related Indenture Supplement shall provide
otherwise, each Series upon issuance shall be deemed to have been created
and in existence as of the first day of the first Collection Period to
occur after the Series Cut-Off Date and, as a result, shall be allocated
(based on its applicable Series Allocation Percentage) its allocable
portion of Interest Collections, Principal Collections, Defaulted Amounts
and Miscellaneous Payments for such Collection Period; and
(ii) unless the related Indenture Supplement shall provide
otherwise, with respect to any Series, if (x) as of the last day of any
Collection Period the amounts on deposit in the Collection Account, the
Excess Funding Account and the related Series Accounts with respect to such
Collection Period are sufficient to pay in full all amounts payable by the
Trust on or with respect to the Notes of such Series on the Payment Date
relating to such Collection Period (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on such related Payment
Date) then (y) such Series shall be deemed to have been paid in full on
such last day and, as a result, shall not be allocated any portion of
Interest Collections, Principal Collections, Defaulted Amounts and
Miscellaneous Payments for any subsequent Collection Period. For purposes
of making the determination in clause (x) above, on the date of any such
determination it shall be assumed that any theretofore unpaid Adjustment
Payments with respect to the
53
immediately preceding Collection Period shall be allocated to such Series
on the related Determination Date and shall be payable from amounts
allocated to or available with respect to such Series on the related
Payment Date.
SECTION 4.04 Allocations of Collections to the Seller.
(a) Subject to Sections 4.04(c) and (d), the Servicer shall instruct
the Trustee on each Deposit Date to withdraw an amount equal to the Seller's
Percentage for the related Collection Period of Interest Collections deposited
in the Collection Account for such Deposit Date (the "Seller's Interest
Collections") and to release such Seller's Interest Collections to the Trust for
distribution in respect of the Seller's Certificates pursuant to the Trust
Agreement.
(b) Subject to Section 4.04(c) and (d), the Servicer shall instruct the
Trustee on each Deposit Date to withdraw an amount equal to the Seller's
Percentage for the related Collection Period of Principal Collections deposited
in the Collection Account for such Deposit Date (the "Seller's Principal
Collections") and to release such Seller's Principal Collections to the Trust
for distribution in respect of the Seller's Certificates pursuant to the Trust
Agreement, so long as the Pool Balance (determined after giving effect to any
Principal Receivables transferred to the Trust on such Payment Date) equals or
exceeds the Aggregate Series Nominal Liquidation Amount for the immediately
preceding Determination Date (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on such Payment Date); it
being understood that any Seller's Principal Collections not otherwise released
to the Trust as a result of the condition specified in this Section 4.04(b)
shall be retained in the Collection Account and included as part of the
Unallocated Principal Collections held therein.
(c) The withdrawals to be made from the Collection Account pursuant to
Section 4.04(a) or (b) do not apply to deposits into the Collection Account that
do not represent Collections, including Miscellaneous Payments, payment of the
purchase price for the Noteholders' Interest pursuant to Section 2.03, and
proceeds from the sale, disposition or liquidation of Receivables pursuant to an
exercise of the "Put Feature" under and as defined in the Indenture or any
Indenture Supplement.
(d) Notwithstanding Section 4.04(a) or (b), with respect to each
Payment Date the Servicer shall instruct the Trustee to retain the Note PFA
Earnings Shortfall for such Payment Date from the amounts that would otherwise
be released to the Trust for distribution in respect of the Seller's
Certificates pursuant to the Trust Agreement and to apply such Note PFA Earnings
Shortfall under the Indenture Supplements.
SECTION 4.05 Repurchased Receivables Purchase Price Payments.
On each Payment Date, amounts on deposit in the Collection Account on
such Payment Date resulting from payment by the Seller of the Repurchased
Receivables Purchase Price pursuant to Section 2.07(c) shall be applied as
follows: first, to fund any unpaid Miscellaneous Payments due on or prior to
such Payment Date and second, an amount equal to the product of (i) the amount
of the Repurchased Receivables Purchase Price initially deposited by the Seller
in the Collection Account pursuant to Section 2.07(c) and (ii) the Monthly
Payment Rate for the immediately preceding Collection Period, shall be treated
as Principal Collections
54
collected in the immediately preceding Collection Period. Notwithstanding
anything to the contrary in this Agreement, including Section 2.07(c), the
Seller shall not be required to make any deposit into the Collection Account in
respect of the Repurchased Receivables Purchase Price of any receivables
repurchased by the Seller from the Trust pursuant to this Agreement, including
Section 2.07(c).
SECTION 4.06 Excess Funding Account; Deposits, Allocations and Withdrawals.
(a) From and after the Effective Date, Excess Available Principal
Amounts shall no longer be subject to deposit into the CARCO Excess Funding
Account as provided in Section 4.04 of the Series 2002-CC Supplement, and
instead shall be subject to deposit by the Trustee into the Excess Funding
Account established and maintained in the name of the Trustee pursuant to
Section 402(b) of the Indenture. The Trustee shall make deposits into the Excess
Funding Account at such times and in such amounts as specified below in this
Section 4.06.
(b) On each Payment Date, commencing with the initial Payment Date
hereunder, the aggregate amount of Excess Available Principal Amounts, if any,
for the related Collection Period shall be applied as follows:
(i) first, deposited into the Excess Funding Account in an amount
equal to the excess, if any, of:
(A) the sum of (1) the aggregate Outstanding Dollar
Principal Amount of all Series of Notes and (2) the sum of the
Overcollateralization Amounts for all Series of Notes; over
(B) the sum of (1) the Aggregate Series Nominal Liquidation
Amount, (2) the aggregate amount on deposit in the Principal Funding
Accounts (other than any net investment earnings) for all Series of
Notes and (3) the amount on deposit in the Excess Funding Account
(other than any net investment earnings); it being understood that,
solely for the purpose of this subclause (B), the Aggregate Series
Nominal Liquidation Amount will be reduced by an amount equal to the
quotient obtained by dividing (x) the excess, if any, of the Required
Participation Amount (less the sum of the Incremental
Overcollateralization Amounts for all Series) over the Pool Balance
(less the sum of the Overconcentration Amount and the aggregate amount
of Ineligible Receivables), in each case, after giving effect to any
Principal Receivables transferred to the Trust on that Payment Date and
the allocations, distributions, withdrawals and deposits to be made on
that Payment Date (other than any deposits into the Excess Funding
Account that may be required to be made on that Payment Date) by (y)
the sum of the weighted average of the Required Participation
Percentages for each Series of Notes plus the weighted average of the
Overcollateralization Percentages used for purposes of determining the
Overcollateralization Amounts for each Series of Notes; and
(ii) second, after giving effect to the immediately preceding
clause (i), the remaining Excess Available Principal Amounts, if any, shall
be released to the Trust
55
for distribution in respect of the Seller's Certificates pursuant to the
Trust Agreement, so long as the Pool Balance (determined after giving
effect to any Principal Receivables transferred to the Trust on such
Payment Date) equals or exceeds the Aggregate Series Nominal Liquidation
Amount for the immediately preceding Determination Date (after giving
effect to the allocations, distributions, withdrawals and deposits to be
made on such Payment Date); it being understood that any Excess Available
Principal Amounts not otherwise paid to the Trust as a result of the
condition specified in this clause (ii) shall be transferred to the
Collection Account and included as part of the Unallocated Principal
Collections held therein.
(c) All interest and earnings (net of losses and investment expenses)
on funds on deposit in the Excess Funding Account shall be allocated to each
Series of Notes pro rata on the basis of its Series Nominal Liquidation Amount
and on each Payment Date shall be withdrawn by the Trustee for application under
the Indenture Supplement for such Series of Notes; provided, however, that
beginning on the second Payment Date following the end of the revolving period
for a Series of Notes, no further net investment earnings on funds in the Excess
Funding Account shall be allocated to such Series of Notes, unless the revolving
period for such Series has recommenced in accordance with the related Indenture
Supplement.
(d) Amounts (other than investment earnings) being deposited to the
Excess Funding Account from Excess Available Principal Amounts pursuant to
Section 4.06(b)(i) shall be allocated to each Series of Notes (other than any
Series of Notes that is not in its revolving period) pro rata on the basis of
its Series Nominal Liquidation Amount. On the Payment Date next following the
end of the revolving period for a Series of Notes, any funds (other than
investment earnings) on deposit in the Excess Funding Account that are allocable
to such Series of Notes shall be withdrawn by the Trustee for application under
the Indenture Supplement for such Series of Notes.
(e) On each Determination Date, the Seller shall determine whether the
sum of the Aggregate Series Nominal Liquidation Amount (after giving effect to
the allocations, distributions, withdrawals and deposits to be made on the
Payment Date following such Determination Date), the amount on deposit in the
Excess Funding Account (other than any investment earnings) and the amount on
deposit in the Principal Funding Accounts for all Series of Notes (other than
any investment earnings) is greater than the aggregate Outstanding Dollar
Principal Amount of all Series of Notes plus the aggregate Overcollateralization
Amount for all Series of Notes. If on any such Determination Date such sum is
greater than the aggregate Outstanding Principal Dollar Amount of all Series of
Notes plus the aggregate Overcollateralization Amount for all Series of Notes
and thus there are sufficient Principal Receivables in the Trust to permit an
increase in the Aggregate Series Nominal Liquidation Amount without causing an
Early Redemption Event to occur with respect to any outstanding Series of Notes,
the Seller shall notify the Trustee of the amount of the increase in the
Aggregate Series Nominal Liquidation Amount. Subject to the provisions set forth
below in this Section 4.06(e), upon receipt of such notice, the Aggregate Series
Nominal Liquidation Amount shall be increased by the amount specified, and the
Servicer shall instruct the Trustee to withdraw from the Excess Funding Account
and release to the Trust for distribution pursuant to the Trust Agreement on the
immediately succeeding Payment Date, an amount equal to the amount of such
increase in the Aggregate Series Nominal Liquidation Amount. Such payment shall
be in
56
payment or partial payment pursuant to the Receivables Purchase Agreement for
additional Principal Receivables transferred to the Trust. To the extent that
the Aggregate Series Nominal Liquidation Amount is increased by release of funds
to the Trust, the Seller's Interest shall be reduced by the amount of such
payment. Such increase in the Aggregate Series Nominal Liquidation Amount shall
be allocated among each Series of Notes (other than any Series of Notes that is
not in its revolving period) pro rata on the basis of the Series Nominal
Liquidation Amounts of such Series of Notes. In addition, any increase in the
Aggregate Series Nominal Liquidation Amount is subject to the condition that,
after giving effect to such increase, the Pool Balance equals or exceeds the
Required Participation Amount (after giving effect to the allocations,
distributions, withdrawals and deposits). In connection with the foregoing
release of funds from the Excess Funding Account, the Seller shall endeavor
(taking into account any seasonality experienced in the Accounts in the Trust)
to minimize the amounts on deposit, from time to time, in the Excess Funding
Account.
(f) Pursuant to the authority granted to the Servicer in Section
3.01(a), the Servicer shall have the power, revocable by the Trustee, to
instruct the Trustee to make withdrawals and payments from the Excess Funding
Account for the purposes of carrying out the Servicer's or the Trustee's duties
specified in this Agreement, the Indenture or an Indenture Supplement, as the
case may be.
SECTION 4.07 Unallocated Principal Collections.
The sum of those Seller's Principal Collections retained in the
Collection Account pursuant to Section 4.04(b) and those Excess Available
Principal Amounts transferred to the Collection Account pursuant to Section
4.06(b)(ii) (such sum, the "Unallocated Principal Collections") shall be
released to the Trust for distribution in respect of the Seller's Certificates
pursuant to the Trust Agreement at the time the Pool Balance (determined after
giving effect to any Principal Receivables transferred to the Trust at such
time) exceeds the Aggregate Series Nominal Liquidation Amount for the
immediately preceding Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on the Payment
Date immediately following such Determination Date); provided, however, that any
Unallocated Principal Collections on deposit in the Collection Account at any
time during which any Series is not in its revolving period shall be deemed to
be Miscellaneous Payments and shall be allocated to each Series as provided in
Section 4.03(a).
ARTICLE V
[RESERVED]
ARTICLE VI
[RESERVED]
57
ARTICLE VII
OTHER MATTERS RELATING TO THE SELLER
SECTION 7.01 Liability of the Seller.
The Seller shall be liable for all obligations, covenants,
representations and warranties of the Seller arising under or related to this
Agreement. Except as provided in the preceding sentence, the Seller shall be
liable only to the extent of the obligations specifically undertaken by it in
its capacity as Seller hereunder.
SECTION 7.02 Limitation on Liability of the Seller.
Subject to Sections 7.01 and 7.03, neither the Seller nor any of the
directors or officers or employees or agents of the Seller in its capacity as
Seller shall be under any liability to the Trust, the Owner Trustee, the
Trustee, the Noteholders or any other Person for any action taken or for
refraining from the taking of any action in the capacity as Seller pursuant to
this Agreement whether arising from express or implied duties under this
Agreement; provided, however, that this provision shall not protect the Seller
or any such Person against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder. The Seller and any director or officer or employee or agent of the
Seller may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
SECTION 7.03 Seller Indemnification of the Trust, the Trustee, the Owner
Trustee and the Enhancement Providers.
The Seller shall indemnify and hold harmless the Trust, the Trustee,
the Owner Trustee and the Enhancement Providers, from and against any loss,
liability, expense, damage or injury suffered or sustained by reason of any
acts, omissions or alleged acts or omissions arising out of activities of the
Trust, the Trustee or the Owner Trustee pursuant to this Agreement, including
any judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim; provided, however, that the Seller shall not
indemnify the Trust, the Trustee, the Owner Trustee or any Enhancement Provider
if the acts, omissions or alleged acts or omissions of such Person constitute
fraud, gross negligence, breach of fiduciary duty or willful misconduct by such
Person; and provided, further, that the Seller shall not indemnify the Trust,
the Trustee or the Owner Trustee for any liabilities, cost or expense of the
Trust with respect to any action taken by such Person at the request of any
Noteholder, Enhancement Provider or holder of a Supplemental Certificate to the
extent the Trust, the Trustee or the Owner Trustee, as the case may be, is
indemnified by such Noteholder, Enhancement Provider or holder of a Supplemental
Certificate with respect to such action, or with respect to any Federal, state
or local income or franchise taxes (or any interest or penalties with respect
thereto) required to be paid by the Trust or any Noteholder, Enhancement
Provider or holder of a Supplemental Certificate in connection herewith or with
the Notes, the Indenture, any Indenture Supplement, any Enhancement Agreement,
the Supplemental Certificates or the Trust Agreement to any taxing authority.
58
Subject to Section 7.01, any indemnification pursuant to this Section shall only
be from (i) the excess of the Seller's Interest for any date of determination
over the Required Participation Amount as of such date and (ii) any other assets
of the Seller not pledged to third parties or otherwise encumbered in a manner
permitted by the Seller's organizational documents and shall only be made after
payment in full of any amounts that the Seller is obligated to deposit in the
Collection Account pursuant to this Agreement. Any indemnification under this
Article VII shall survive the termination of this Agreement.
SECTION 7.04 Transfer of Seller's Interest to Designated Affiliate.
(a) Notwithstanding anything to the contrary contained in this
Agreement, DCWR may sell, transfer, assign and otherwise convey all, but not
less than all, of its right, title and interest in the Collateral of the Trust,
the Seller's Interest, the DCMOT Certificate, this Agreement, the Related
Documents and any other agreement, document or instrument relating to this
Agreement or the transactions contemplated hereby and its obligations as Seller
hereunder and thereunder to a Designated Affiliate (such transaction is referred
to herein as the "Designated Affiliate Transfer"); provided that such Designated
Affiliate assumes the performance of every covenant and obligation of DCWR under
this Agreement, the Related Documents and any such other agreement, document or
instrument. Such assignment and assumption shall automatically occur ten
Business Days following the date notice thereof is given by DCWR to the Trust,
the Trustee, the Rating Agencies, any Agent and any Enhancement Providers or on
such later date as of which the conditions set forth in Section 7.04(b) are
satisfied.
(b) The Designated Affiliate Transfer may not be effected unless and
until the following conditions precedent are satisfied:
(i) DCWR, the Designated Affiliate and the Trust shall have
executed and delivered an Assignment and Assumption Agreement, which shall
be acknowledged and agreed to by the Trustee, and the Designated Affiliate
shall have delivered to the Trust and the Trustee the Opinion of Counsel
substantially in the form attached to the Assignment and Assumption
Agreement;
(ii) DCWR shall have delivered to the Trust and the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect that each
condition precedent (including the requirement with respect to all required
filings) provided by this Section 7.04(b) have been complied with;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such Designated Affiliate Transfer;
(iv) DCWR shall have delivered to the Trust and the Trustee an
Issuer Tax Opinion (as defined in the Indenture) with respect to such
Designated Affiliate Transfer; and
(v) all filings required to continue the perfection of the
respective interests of the Trust and of the Trustee, as the assignee of
the Trust, in the Receivables and the Collateral Security shall have been
duly made by such Designated Affiliate.
59
(c) Upon such transfer, the Designated Affiliate shall be deemed to
have made all the representations and warranties of the Seller made in this
Agreement as of the date of effectiveness of the Designated Affiliate Transfer.
Upon the effectiveness of the Designated Affiliate Transfer, the Seller shall
surrender the DCMOT Certificate to the Owner Trustee for registration of
transfer and, upon the issuance of the new DCMOT Certificate in the name of the
Designated Affiliate, all as provided for in the Trust Agreement, the term
"Seller" or "DCWR" in this Agreement shall refer to such Designated Affiliate.
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
SECTION 8.01 Liability of the Servicer.
The Servicer shall be liable under this Article VIII only to the extent
of the obligations specifically undertaken by the Servicer in its capacity as
Servicer.
SECTION 8.02 Merger or Consolidation of, or Assumption of, the Obligations
of the Servicer.
The Servicer shall not consolidate with or merge into any other Person
or convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(a) the Person formed by such consolidation or into which the Servicer
is merged or the Person which acquires by conveyance or transfer the properties
and assets of the Servicer substantially as an entirety shall be a Person
organized and existing under the laws of the United States of America or any
State or the District of Columbia and, if the Servicer is not the surviving
entity, such Person shall assume, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, the performance of
every covenant and obligation of the Servicer hereunder; and
(b) the Servicer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer comply with this Section 8.02 and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
(c) The Servicer shall provide the Seller in writing such information
as reasonably requested by the Seller to comply with its Exchange Act reporting
obligations with respect to a successor Servicer.
SECTION 8.03 Limitation on Liability of the Servicer and Others.
Except as provided in Section 8.04, neither the Servicer nor any of the
directors or officers or employees or agents of the Servicer, shall be under any
liability to the Trust, the Owner Trustee, the Trustee, the Noteholders or any
other Person for any action taken or for refraining from the taking of any
action in its capacity as Servicer pursuant to this Agreement; provided,
however, that this provision shall not protect the Servicer or any such Person
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or
60
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Servicer and any director or officer or
employee or agent of the Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Receivables in accordance with this Agreement which in its
reasonable opinion may involve it in any expense or liability.
SECTION 8.04 Servicer Indemnification of the Trust, the Trustee, the Owner
Trustee and the Enhancement Providers.
The Servicer shall indemnify and hold harmless the Trust, the Trustee,
the Owner Trustee and the Enhancement Providers, from and against any loss,
liability, expense, damage or injury suffered or sustained by reason of any
acts, omissions or alleged acts or omissions arising out of activities of the
Servicer, the Trust, the Trustee or the Owner Trustee pursuant to this
Agreement, including any judgment, award, settlement, reasonable attorneys' fees
and other costs or expenses incurred in connection with the defense of any
actual or threatened action, proceeding or claim; provided, however, that the
Servicer shall not indemnify the Trust, the Trustee, the Owner Trustee or any
Enhancement Provider if the acts, omissions or alleged acts or omissions of such
Person constitute fraud, gross negligence, breach of fiduciary duty or willful
misconduct by such Person; and provided, further, that the Servicer shall not
indemnify the Trust, the Trustee or the Owner Trustee for any liabilities, cost
or expense of the Trust with respect to any action taken by such Person at the
request of any Noteholder, Enhancement Provider or holder of a Seller's
Certificate to the extent the Trust, the Trustee or the Owner Trustee, as the
case may be, is indemnified by such Noteholder, Enhancement Provider or holder
of a Seller's Certificate with respect to such action, or with respect to any
Federal, state or local income or franchise taxes (or any interest or penalties
with respect thereto) required to be paid by the Trust or any Noteholder,
Enhancement Provider or holder of a Seller's Certificate in connection herewith
or with the Notes, the Indenture, any Indenture Supplement, any Enhancement
Agreement, the Seller's Certificates or the Trust Agreement to any taxing
authority. Any indemnification under this Article VIII shall survive the
termination of this Agreement and the resignation and removal of the Trustee.
SECTION 8.05 The Servicer Not to Resign.
The Servicer shall not resign from the obligations and duties
hereby imposed on it except upon determination that (a) the performance of its
duties hereunder is no longer permissible under applicable law and (b) there is
no reasonable action which the Servicer could take to make the performance of
its duties hereunder permissible under applicable law. Any such determination
permitting the resignation of the Servicer shall be evidenced as to clause (a)
above by an Opinion of Counsel to such effect delivered to the Trust and the
Trustee. No such resignation shall become effective until the Trustee or a
Successor Servicer shall have (i) assumed the responsibilities and obligations
of the Servicer in accordance with Section 10.02 hereof and (ii) provided in
writing the information reasonably requested by the Seller to comply with its
reporting obligations under the Exchange Act with respect to a successor
Servicer. If the Trustee is unable within 120 days of the date of such
determination to appoint a Successor Servicer, the Trustee shall serve as
Successor Servicer hereunder.
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SECTION 8.06 Access to Certain Documentation and Information Regarding the
Receivables.
The Servicer shall provide to the Trustee access to the
documentation regarding the Accounts and the Receivables in such cases where the
Trustee is required in connection with the enforcement of the rights of the
Noteholders, or by applicable statutes or regulations to review such
documentation, such access being afforded without charge but only (a) upon
reasonable request, (b) during normal business hours, (c) subject to the
Servicer's normal security and confidentiality procedures and (d) at offices
designated by the Servicer. Nothing in this Section 8.06 shall derogate from the
obligation of the Seller, the Trust, the Trustee or the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Dealers and
the failure of the Servicer to provide access as provided in this Section 8.06
as a result of such obligation shall not constitute a breach of this Section
8.06.
SECTION 8.07 Delegation of Duties.
Subject to Section 3.01, in the ordinary course of business,
the Servicer may at any time delegate any duties hereunder to any Person who
agrees to conduct such duties in accordance with the Floorplan Financing
Guidelines and this Agreement. The Servicer shall give prompt written notice of
any such delegation of a material function to the Note Rating Agencies, any
Agent and any Enhancement Providers. Such delegation shall not relieve the
Servicer of its liability and responsibility with respect to such duties, and
shall not constitute a resignation within the meaning of Section 8.05 and the
Rating Agency Condition shall have been satisfied with respect to such
delegation prior to such delegation.
SECTION 8.08 Examination of Records.
The Seller and the Servicer shall indicate generally in its
computer files or other records that the Receivables arising in the Accounts
have been conveyed to the Trust pursuant to this Agreement. The Seller and the
Servicer shall, prior to the sale or transfer to a third party of any receivable
held in its custody, examine its computer and other records to determine that
such receivable is not a Receivable.
SECTION 8.09 Optional Repurchase by the Servicer.
Pursuant to Section 1202 of the Indenture, and subject to the
conditions set forth therein, the Servicer shall have the right, but not the
obligation, to cause the Trust to redeem a Series or Class of Notes in whole but
not in part by paying to the Trust the applicable redemption price for such
Series or Class of Notes.
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ARTICLE IX
[RESERVED]
ARTICLE X
SERVICE DEFAULTS
SECTION 10.01 Service Defaults.
If any one of the following events (a "Service Default") shall occur
and be continuing with respect to the Servicer:
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give instructions or to give notice to the Trustee to make such
payment, transfer or deposit or to give notice to the Trustee as to any action
to be taken under any Enhancement Agreement on or before the date occurring five
days after the date such payment, transfer or deposit or such instruction or
notice is required to be made or given, as the case may be, under the terms of
this Agreement, the Indenture or any Indenture Supplement;
(b) failure on the part of the Servicer duly to observe or perform any
other covenants or agreements of the Servicer set forth in this Agreement, the
Indenture or any Indenture Supplement which has a material adverse effect on the
Noteholders of any Series, which continues unremedied for a period of 30 days
after the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee; or the Servicer
shall delegate its duties under this Agreement, except as permitted by Sections
3.01 and 8.07;
(c) any representation, warranty or certification made by the Servicer
in this Agreement or in any certificate delivered pursuant to this Agreement
shall prove to have been incorrect when made, which has a material adverse
effect on the rights of the Noteholders of any Series and which material adverse
effect continues for a period of 60 days after the date on which written notice
thereof, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee;
(d) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator or other similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property, or a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator or receiver or liquidator or other similar official in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed; or the Servicer shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make any assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations;
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then, in the event of any Service Default, so long as the Service Default shall
not have been remedied, the Trustee, by notice then given in writing to the
Servicer (a "Termination Notice"), may terminate all but not less than all of
the rights and obligations (other than its obligations that have accrued up to
the time of such termination) of the Servicer as Servicer under this Agreement
and in and to the Receivables and the proceeds thereof. After receipt by the
Servicer of a Termination Notice, and on the date that a Successor Servicer
shall have been appointed by the Trustee pursuant to Section 10.02, all
authority and power of the Servicer under this Agreement shall pass to and be
vested in a Successor Servicer (a "Service Transfer") and, without limitation,
the Trustee is hereby authorized and empowered (upon the failure of the Servicer
to cooperate) to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments upon the
failure of the Servicer to execute or deliver such documents or instruments, and
to do and accomplish all other acts or things necessary or appropriate to effect
the purposes of such Service Transfer. The Servicer agrees to cooperate with the
Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the Servicer to conduct servicing hereunder,
including the transfer to such Successor Servicer of all authority of the
Servicer to service the Receivables provided for under this Agreement, including
all authority over all Collections which shall on the date of transfer be held
by the Servicer for deposit, or which have been deposited by the Servicer, in
the Collection Account, or which shall thereafter be received with respect to
the Receivables, and in assisting the Successor Servicer. The Servicer shall
promptly transfer its electronic records relating to the Receivables to the
Successor Servicer in such electronic form as the Successor Servicer may
reasonably request and shall promptly transfer to the Successor Servicer all
other records, correspondence and documents necessary for the continued
servicing of the Receivables in the manner and at such times as the Successor
Servicer shall reasonably request. To the extent that compliance with this
Section 10.01 shall require the Servicer to disclose to the Successor Servicer
information of any kind which the Servicer reasonably deems to be confidential,
the Successor Servicer shall be required to enter into such customary licensing
and confidentiality agreements as the Servicer shall deem necessary to protect
its interest. Any Successor Servicer (including the Trustee as Successor
Servicer) shall provide the Seller in writing with such information as is
reasonably requested by the Seller to comply with its reporting obligations
under the Exchange Act with respect to such Servicer.
Notwithstanding the foregoing, a delay in or failure of performance
under Section 10.01(a) for a period of ten Business Days or under Section
10.01(b) or (c) for a period of 60 Business Days shall not constitute a Service
Default if such delay or failure could not be prevented by the exercise of
reasonable diligence by the Servicer and such delay or failure was caused by an
act of God or the public enemy, acts of declared or undeclared war, public
disorder, rebellion or sabotage, epidemics, landslides, lightning, fire,
hurricanes, earthquakes, floods or similar causes. The preceding sentence shall
not relieve the Servicer from using its best efforts to perform its respective
obligations in a timely manner in accordance with the terms of this Agreement
and the Servicer shall provide the Trustee, any Agents, any Enhancement
Providers, the Seller, the Trust and the Noteholders with an Officers'
Certificate giving prompt notice of such failure or delay by it, together with a
description of its efforts so to perform its obligations. The Servicer shall
immediately notify the Trustee, the Seller and the Rating Agencies in writing of
any Service Default.
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SECTION 10.02 Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a Termination Notice
pursuant to Section 10.01, the Servicer shall continue to perform all servicing
functions under this Agreement until the date specified in the Termination
Notice or otherwise specified by the Trustee in writing or, if no such date is
specified in such Termination Notice, or otherwise specified by the Trustee,
until a date mutually agreed upon by the Servicer and the Trustee. The Trustee
shall as promptly as possible after the giving of a Termination Notice appoint
an Eligible Servicer as a successor servicer (the "Successor Servicer"), subject
to the consent of any Enhancement Providers and any Agents, which consent shall
not be unreasonably withheld, and such Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Trustee. In the
event that a Successor Servicer has not been appointed or has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the Trustee
without further action shall automatically be appointed the Successor Servicer.
The Trustee may delegate any of its servicing obligations to an affiliate or
agent in accordance with Sections 3.01 and 8.07. Notwithstanding the above, the
Trustee shall, if it is legally unable so to act, petition a court of competent
jurisdiction to appoint any established institution having a net worth of not
less than $100,000,000 and whose regular business includes the servicing of
wholesale receivables as the Successor Servicer hereunder. The Trustee shall
immediately give notice to the Trust, the Note Rating Agencies, any Enhancement
Providers, any Agents and the Noteholders upon the appointment of a Successor
Servicer.
(b) Upon its appointment, the Successor Servicer shall be the successor
in all respects to the Servicer with respect to servicing functions under this
Agreement and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof (except that the Successor Servicer shall not be liable for any
liabilities incurred by the predecessor Servicer), and all references in this
Agreement to the Servicer shall be deemed to refer to the Successor Servicer.
Any Successor Servicer, by its acceptance of its appointment, will automatically
agree to be bound by the terms and provisions of any Enhancement Agreement.
(c) In connection with any Termination Notice, the Trustee will review
any bids which it obtains from Eligible Servicers and shall be permitted to
appoint any Eligible Servicer submitting such a bid as a Successor Servicer for
servicing compensation not in excess of the Servicing Fee (provided that if all
such bids exceed the Servicing Fee the Seller at its own expense shall pay when
due the amount of any compensation in excess of the Servicing Fee); provided,
however, that the Seller shall be responsible for payment of the Seller's
portion of the Servicing Fee as determined pursuant to this Agreement and all
other amounts in excess of the Aggregate Series Servicing Fee, and that no such
monthly compensation paid out of Collections shall be in excess of the Aggregate
Series Servicing Fee permitted to the Servicer. The holders of the Seller's
Certificates agree that if DCFS (or any Successor Servicer) is terminated as
Servicer hereunder, the portion of Collections to be released to the Trust for
distribution in respect of the Seller's Certificates pursuant to the Trust
Agreement shall be reduced by an amount sufficient to pay Seller's share of the
compensation of the Successor Servicer.
(d) All authority and power granted to the Successor Servicer under
this Agreement shall automatically cease and terminate upon termination of the
Trust pursuant to
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Section 7.01 of the Trust Agreement, and shall pass to and be vested in the
Seller and, without limitation, the Seller is hereby authorized and empowered to
execute and deliver, on behalf of the Successor Servicer, as attorney-in-fact or
otherwise, all documents and other instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the purposes of such
transfer of servicing rights. The Successor Servicer agrees to cooperate with
the Seller in effecting the termination of the responsibilities and rights of
the Successor Servicer to conduct servicing on the Receivables. The Successor
Servicer shall transfer its electronic records relating to the Receivables to
the Seller in such electronic form as the Seller may reasonably request and
shall transfer all other records, correspondence and documents to the Seller in
the manner and at such times as the Seller shall reasonably request. To the
extent that compliance with this Section 10.02 shall require the Successor
Servicer to disclose to the Seller information of any kind which the Successor
Servicer deems to be confidential, the Seller shall be required to enter into
such customary licensing and confidentiality agreements as the Successor
Servicer shall deem necessary to protect its interests.
ARTICLE XI
EXCHANGE ACT REPORTING
SECTION 11.01 Further Assurances. The Indenture Trustee, the Owner Trustee
and the Servicer shall reasonably cooperate with the Seller in connection with
the satisfaction of the Seller's reporting requirements under the Exchange Act
with respect to the Trust. The Seller shall not exercise its right to request
delivery of information or other performance under these provisions other than
in good faith. In addition to the information specified below, if so requested
by the Seller for the purpose of satisfying its reporting obligation under the
Exchange Act with respect to the Trust, each of the Indenture Trustee, the Owner
Trustee and the Servicer shall provide the Seller with (a) such information
which is available to such Person without unreasonable effort or expense and
within such timeframe as may be reasonably requested by the Seller to comply
with the Seller's reporting obligations under the Exchange Act and (b) to the
extent such Person is a party (and the Seller is not a party) to any agreement
or amendment required to be filed, copies of such agreement or amendment in
EDGAR-compatible form. Each of the Servicer, the Indenture Trustee and the Owner
Trustee acknowledges that interpretations of the requirements of Regulation AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
reasonable requests made by the Seller in good faith for delivery of information
under these provisions on the basis of evolving interpretations of Regulation
AB.
SECTION 11.02 Form 10-D Filings. From and after the date of this Agreement,
for so long as the Seller is required to file Exchange Act reports with respect
to the Trust, no later than each Payment Date, each of the Indenture Trustee,
the Owner Trustee and the Servicer shall notify (and the Servicer shall cause
any subservicer to notify) the Seller of any Form 10-D Disclosure Item with
respect to such Person, together with a description of any such Form 10-D
Disclosure Item in form and substance reasonably acceptable to the Seller. In
addition to such information as the Servicer is obligated to provide pursuant to
other provisions of this Agreement or pursuant to any other Transaction
Document, if so requested by the Seller, the Servicer shall provide such
information which is available to the Servicer, without unreasonable effort or
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expense regarding the performance or servicing of the Receivables as is
reasonably required to facilitate preparation of distribution reports in
accordance with Item 1121 of Regulation AB. Such information shall be provided
concurrently with the Monthly Noteholders' Report pursuant to the related
Indenture Supplement, commencing with the first such report due not less than
five Business Days following such request.
SECTION 11.03 Form 8-K Filings. From and after the date of this Agreement,
for so long as the Seller is required to file Exchange Act reports with respect
to the Trust, each of the Indenture Trustee, the Owner Trustee and the Servicer
shall promptly notify the Seller, but in no event later than one Business Day
after its occurrence, of any Reportable Event (in the case of the Owner Trustee,
only an event in clause (d) of the definition of "Reportable Event") of which
such Person (or in the case of the Owner Trustee and the Indenture Trustee, a
Responsible Officer of such Person) has actual knowledge. Each Person shall have
actual knowledge of any such event only to the extent that it relates to such
Person or any action or failure to act by such Person.
SECTION 11.04 Form 10-K Filings. From and after the date of this Agreement,
for so long as the Seller is required to file Exchange Act reports with respect
to the Trust: (i) if the Item 1119 Parties listed on Appendix A have changed
since the Closing Date for the Notes of any Series or Class, then no later than
March 1 of each year, the Seller shall provide each of the Indenture Trustee,
the Owner Trustee and the Servicer with an updated Appendix A setting forth the
Item 1119 Parties and (ii) no later than March 15 of each year, commencing in
2007, the Indenture Trustee, the Owner Trustee and the Servicer shall notify the
Seller of any Form 10-K Disclosure Item, together with a description of any such
Form 10-K Disclosure Item in form and substance reasonably acceptable to the
Seller.
SECTION 11.05 Report on Assessment of Compliance and Attestation. From and
after the date of this Agreement, for so long as the Seller is required to file
Exchange Act reports with respect to the Trust, on or before March 15 of each
calendar year, commencing in 2007:
(a) In the case of the Servicer:
(i) The Servicer shall deliver to the Seller, the Trust and the
Indenture Trustee the Servicing Criteria assessment with respect to the
prior calendar year that would required be required to be filed in respect
of the Trust under the Exchange Act under Item 1122 of Regulation AB if
periodic reports under Section 15(d) of the Exchange Act, or any successor
provision thereto, were required to be filed in respect of the Trust. Such
report shall be signed by an authorized officer of the Servicer and shall
at a minimum address each of the Servicing Criteria specified on a
certification substantially in the form of Appendix B hereto delivered to
the Seller concurrently with the execution of this Agreement (provided that
such certification may be revised pursuant to Section 11.11 after the date
of this Agreement as agreed by the Seller, the Servicer, the Trust and the
Indenture Trustee to reflect any guidance with respect to such criteria
from the Commission or its staff). To the extent any of the Servicing
Criteria is not applicable to the Servicer, with respect to asset-backed
securities transactions taken as a whole involving the Servicer that are
backed by the same asset type as the Receivables, such report shall include
such a statement to that effect. The Servicer acknowledges and
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agrees that the Seller with respect to its duties as the Certifying Person,
and each of its officers and directors, shall be entitled to rely on each
such Servicing Criteria assessment and the attestation delivered pursuant
to Section 11.05(a)(ii) immediately below.
(ii) The Servicer shall cause a firm of independent certified
public accountants, who may also render other services to the Servicer or
the Seller, to deliver to the Seller, the Trust and the Indenture Trustee
with respect to the prior calendar year the attestation report that would
be required to be filed in respect of the Trust under the Exchange Act if
periodic reports under Section 15(d) of the Exchange Act, or any successor
provision thereto, were required to be filed in respect of the Trust. Such
attestation report shall be in accordance with Rules 1-02(a)(3) and 2-02(g)
of Regulation S-X under the Securities Act and the Exchange Act, including,
without limitation that in the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such
report why it was unable to express such an opinion. Such attestation
report must be available for general use and not contain restricted use
language.
(iii) The Servicer shall cause each Reporting Subcontractor to
deliver to the Seller and the Trust an assessment of compliance and
accountants' attestation as and when provided in clauses (i) and (ii) of
this Section 11.05(a). The Servicer shall execute (provided the Servicer is
not an Affiliate of the Seller) (and shall cause each Reporting
Subcontractor to execute) a reliance certificate to enable the
Certification Parties to rely upon each (A) annual report on assessments of
compliance with servicing criteria provided pursuant to said clause (i)
above (and pursuant to this clause (iii)) and (B) accountants' report
provided pursuant to said clause (ii) above (and pursuant to this clause
(iii)), and shall include a certification that each such annual compliance
statement or report discloses any deficiencies or defaults described to the
registered public accountants of such Person to enable such accountants to
render the report provided for in said clause (ii) above.
(iv) In the event the Servicer, any subservicer or Reporting
Subcontractor is terminated or resigns during the term of this Agreement,
such Person shall provide the documents and information pursuant to clauses
(i) and (ii) of this Section 11.05(a) with respect to the period of time it
was subject to this Agreement or provided services with respect to the
Trust or the Receivables. Notwithstanding anything to the contrary
contained herein, if the Servicer has exercised commercially reasonable
efforts to obtain any assessment or attestation required hereunder from a
Reporting Subcontractor, the failure by the Reporting Subcontractor to
provide such attestation on or assessment shall not constitute a breach
hereunder by the Servicer.
(b) In the case of the Indenture Trustee:
(i) The Indenture Trustee shall deliver to the Seller and the
Servicer a report of the Indenture Trustee's assessment of compliance with
the Servicing Criteria with respect to the prior calendar year, as set
forth under Rules 13a-18 and 15d-18 of the Exchange Act (or any successor
provisions) and Item 1122 of Regulation AB. Such report shall be signed by
a Responsible Officer of the Indenture Trustee and shall at a
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minimum address each of the Servicing Criteria specified on a certification
substantially in the form of Appendix B hereto delivered to the Seller
concurrently with the execution of this Agreement (provided that such
certification may be revised pursuant to Section 11.11 after the date of
this Agreement as agreed by the Seller, the Servicer, the Trust and the
Indenture Trustee to reflect any guidance with respect to such criteria
from the Commission or its staff). To the extent any of the Servicing
Criteria are not applicable to the Indenture Trustee, with respect to
asset-backed securities transactions taken as a whole involving the
Indenture Trustee and that are backed by the same asset type as the
Receivables, such report shall include such a statement to that effect. The
Indenture Trustee acknowledges and agrees that the Seller with respect to
its duties as the Certifying Person, and each of its officers and
directors, shall be entitled to rely upon each such servicing criteria
assessment and the attestation delivered pursuant to Section 11.05(b)(ii)
immediately below.
(ii) The Indenture Trustee shall deliver to the Seller and the
Servicer a report of a registered public accounting firm that attests to,
and reports on, the assessment of compliance made by the Indenture Trustee
and delivered pursuant to clause (i) of this Section 11.05(b). Such
attestation shall be in accordance with Rules 13a-18 and 15d-18 of the
Exchange Act (or any successor provisions), Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X (or any successor provisions) under the Securities Act and
the Exchange Act, including, without limitation, that in the event that an
overall opinion cannot be expressed, such registered public accounting firm
shall state in such report why it was unable to express such an opinion.
Such report must be available for general use and not contain restricted
use language.
(iii) The Indenture Trustee shall cause each Reporting
Subcontractor to deliver to the Seller and the Servicer an assessment of
compliance and accountants' attestation as and when provided in clauses (i)
and (ii) of this Section 11.05(b). An assessment of compliance provided by
a Subcontractor need not address any elements of the Servicing Criteria
other than those specified by the Indenture Trustee pursuant to clause (i)
of this Section 11.05(b).
(iv) In the event the Indenture Trustee or a Reporting
Subcontractor is terminated or resigns during the term of this Agreement,
such Person shall provide the documents and information pursuant to this
Section 11.05(b) with respect to the period of time it was subject to this
Agreement or provided services with respect to the Trust or the
Receivables.
SECTION 11.06 Servicer's Annual Compliance Statement. From and after the
date of this Agreement, for so long as the Seller is required to file Exchange
Act reports with respect to the Trust, on or before March 15 of each calendar
year, commencing in 2007, the Servicer shall deliver to the Rating Agencies, the
Trustee, the Trust, any Agent and any Enhancement Providers, an Officers'
Certificate meeting the requirements of Item 1123 of Regulation AB stating
substantially to the following effect: (a) a review of the activities of the
Servicer during the preceding calendar year and of its performance under this
Agreement has been made under the supervision of the officer signing such
certificate and (b) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this
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Agreement in all material respects throughout such year or, if there has been a
failure to fulfill any such obligation in any material respect, specifying each
such failure known to such officer and the nature and status thereof. The
Servicer acknowledges and agrees that the Seller with respect to its duties as
the Certifying Person, and each of its officers and directors, shall be entitled
to rely on each such Servicer compliance statement. A copy of such statement may
be obtained by any Noteholder by a request in writing to the Trustee addressed
to the Corporate Trust Office.
SECTION 11.07 Back-up Sarbanes-Oxley Certification. From and after the date
of this Agreement, for so long as the Seller is required to file Exchange Act
reports with respect to the Trust, on or before March 15 of each year, beginning
in 2007, the Servicer shall provide to the Person who signs the Sarbanes-Oxley
Certification (the "Certifying Person") a certification (each, a "Performance
Certification") and shall cause each Reporting Subcontractor, in the form
attached hereto as Appendix C (in the case of a Reporting Subcontractor) and as
Appendix D (in the case of the Servicer) on which the Certifying Person, the
entity for which the Certifying Person acts as an officer, and such entity's
officers, directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can reasonably rely. The Seller will not request
delivery of a certification under this Section 11.07 unless the Seller is
required under the Exchange Act to file an annual report on Form 10-K with
respect to the Trust. So long as the Servicer is the Seller or an Affiliate of
the Seller, the Servicer is not required to deliver the Performance
Certification. In the event that prior to the filing date of the Form 10-K in
March of each year, beginning in 2007, the Indenture Trustee or the Servicer has
actual knowledge of information as to itself (or any of its Subcontractors
appointed pursuant to Section 11.08) that is material to the Sarbanes-Oxley
Certification, the Indenture Trustee or the Servicer shall promptly notify the
Seller. Each of the Indenture Trustee and the Servicer agrees to cooperate with
all reasonable requests made by any Certifying Person or Certification Party in
connection with such Person's attempt to conduct any due diligence that such
Person reasonably believes to be appropriate in order to allow it to deliver any
Sarbanes-Oxley Certification or portion thereof with respect to the Trust.
SECTION 11.08 Use of Subcontractors.
(a) It shall not be necessary for the Indenture Trustee or the Servicer
to seek the consent of the Seller or any other party hereto to the utilization
of any Subcontractor. Each of the Indenture Trustee and the Servicer shall
promptly upon request provide to the Seller (or any designee of the Seller, such
as the Servicer or the Administrator) a written description (in form and
substance satisfactory to the Seller) of the role and function of each
Subcontractor utilized by such Person, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB and
(iii) which elements of the Servicing Criteria will be addressed in assessments
of compliance provided by each Subcontractor identified pursuant to clause (ii)
of this sentence.
(b) As a condition to the utilization by the Indenture Trustee of any
Subcontractor determined to be a Reporting Subcontractor, the Indenture Trustee
shall cause any such Subcontractor for the benefit of the Seller to comply with
the provisions of Sections 11.05(b) and 11.07 to the same extent as if such
Subcontractor were the Indenture Trustee. The
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Indenture Trustee shall be responsible for obtaining from each such
Subcontractor and delivering to the Seller, any assessment of compliance and
attestation required to be delivered by such Subcontractor under Sections
11.05(b) and 11.06, in each case as and when required to be delivered.
(c) As a condition to the utilization by the Servicer of any
Subcontractor determined to be a Reporting Subcontractor, the Servicer shall
cause any such Subcontractor for the benefit of the Seller to comply with the
provisions of Section 11.05(a) and Section 11.07 to the same extent as if such
Subcontractor were the Servicer. The Servicer shall be responsible for obtaining
from each such Subcontractor and delivering to the Seller, any assessment of
compliance and attestation required to be delivered by such Subcontractor under
this Agreement, in each case as and when required to be delivered.
(d) As a condition to the utilization of any Subcontractor (whether or
not a Reporting Subcontractor), the Indenture Trustee or the Servicer, as the
case may be, shall (i) cause such Subcontractor to covenant and agree for the
benefit of the Seller and the Trust that such Subcontractor will not at any time
institute against the Seller or the Trust any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law and (ii) promptly
provide written evidence of such covenant and agreement of such Subcontractor to
the Seller or the Trust upon its request therefor.
SECTION 11.09 Representations and Warranties. Each of the Indenture Trustee
and the Owner Trustee represents as of the date of this Agreement and each
Closing Date that (i) there are no affiliations, relating to such Person with
respect to any 1119 Party, (ii) there are no relationships or transactions with
respect to any 1119 Party and such Person that are outside the ordinary course
of business or on terms other than would be obtained in an arm's-length
transaction with an unrelated third party, apart from the transactions
contemplated under the Transaction Documents, and that are material to the
investors' understanding of the Notes and (iii) there are no legal proceedings
pending, or known to be contemplated by governmental authorities, against such
Person, or of which the property of such Person is subject, that is material to
the Noteholders.
SECTION 11.10 Indemnification.
(a) Each of the Indenture Trustee and the Servicer (if the Seller is
not the Servicer) shall indemnify the Seller, each affiliate of the Seller, the
Servicer with respect to its duties as Certifying Person or each Person who
controls any of such parties (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act) and the respective present and former
directors, officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out of
or based upon:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in (x) with respect to the Indenture Trustee, the
assessment of compliance provided under this Article XI and (y) with
respect to the Servicer, Sections 3.05, 3.06,
71
11.05(a) and 11.06 by or on behalf of such Person (with respect to each
such party, the "Provided Information"), or (B) the omission or alleged
omission to state in the Provided Information a material fact required to
be stated in the Provided Information, or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, by way of clarification, that clause (B) of
this clause (i) shall be construed solely by reference to the related
Provided Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard to whether
the Provided Information or any portion thereof is presented together with
or separately from such other information; or
(ii) with respect to the Indenture Trustee, any failure by the
Indenture Trustee to deliver any assessment of compliance when and as
required under this Article XI, and with respect to the Servicer, any
failure by the Servicer to deliver any information, report, certification,
accountants' letter or other material when and as required under Section
3.05 or 3.06 or this Article XI, as applicable.
(b) In the case of any failure of performance described in clause (ii)
of Section 11.10(a), each of the Indenture Trustee and the Servicer shall
promptly reimburse the Seller for all costs reasonably incurred by each such
party in order to obtain the information, report, certification, accountants'
letter or other material not delivered as required by the Indenture Trustee or
the Servicer, as applicable.
(c) Each of the Indenture Trustee and the Servicer shall require each
Reporting Subcontractor to agree to the provisions of paragraphs (a) and (b) of
this Section 11.10, or shall be responsible for all such indemnification, costs
or expenses if the Reporting Subcontractor will not agree to such provisions.
(d) Notwithstanding anything to the contrary contained herein, in no
event shall the Indenture Trustee be liable for special, indirect or
consequential damages of any kind whatsoever, including but not limited to lost
profits, even if the Indenture Trustee has been advised of the likelihood of
such loss or damage and regardless of the form of action.
SECTION 11.11 Amendments of Article XI. In the event that the parties to
this Article XI of this Agreement desire to clarify, amend, supplement or
otherwise modify any provision of this Article XI (including the related
Appendices), then this Agreement (including such Appendices) shall be amended to
reflect the new agreement among such parties covering the matters in this
Article XI pursuant to Section 13.01; provided, however, that, notwithstanding
anything to the contrary in Section 13.01, any such amendment will not require
(i) any Opinion of Counsel, (ii) any confirmation from a Note Rating Agency that
such amendment will not have a Ratings Effect, (iii) the consent of any
Noteholder or Certificateholder or (iv) the consent or execution of either the
Indenture Trustee or the Owner Trustee if either such party shall not be bound
by such amendment. The Seller shall deliver to the Note Rating Agencies prior
written notice of any amendment or modification of this Article XI to be made
pursuant to this Section 11.11.
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ARTICLE XII
TERMINATION
SECTION 12.01 Termination of Agreement.
This Agreement and the respective obligations and responsibilities of
the Seller, the Servicer and the Trust shall terminate, except with respect to
the duties described in Sections 7.03 and 8.04, upon the Trust Termination Date.
The Servicer will give the Rating Agencies prompt notice of the occurrence of
the Trust Termination Date.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Amendment.
(a) This Agreement may be amended from time to time (including in
connection with the issuance of a Supplemental Certificate pursuant to the Trust
Agreement) by the Servicer, the Seller and the Trust without the consent of any
of the Noteholders; provided that (i) such action shall not, as evidenced by an
Opinion of Counsel for the Seller, addressed and delivered to the Trust and the
Trustee, adversely affect in any material respect the interests of any
Noteholder and (ii) the Trustee shall have received written confirmation from
each Note Rating Agency that such amendment will not have a Ratings Effect.
(b) This Agreement may also be amended from time to time (including in
connection with the issuance of a Supplemental Certificate pursuant to the Trust
Agreement) by the Servicer, the Seller and the Trust, with the consent of the
Holders of Notes evidencing not less than 66-2/3% of the aggregate Outstanding
Dollar Principal Amount of the Notes of all adversely affected Series or
Classes, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders; provided, however, that no such amendment
shall (i) reduce in any manner the amount of or delay the timing of any
distributions to be made to Noteholders or deposits of amounts to be so
distributed or the amount available under any Enhancement Agreement without the
consent of each affected Noteholder, (ii) change the definition of or the manner
of calculating the interest of any Noteholder without the consent of each
affected Noteholder, (iii) reduce the aforesaid percentage required to consent
to any such amendment without the consent of each Noteholder or (iv) adversely
affect the rating of any Series or Class by each Note Rating Agency without the
consent of each affected Noteholder. Notwithstanding anything to the contrary in
the foregoing, any amendment to be effected pursuant to this paragraph (b)
without the consent of each adversely affected Noteholder shall be subject to
the Trustee's receipt of written confirmation from each applicable Note Rating
Agency that such amendment will not have a Ratings Effect with respect to the
adversely affected Notes. Any amendment to be effected pursuant to this
paragraph (b) shall be deemed to adversely affect all outstanding Series and
Classes, other than any Series or Class with respect to which such action shall
not, as evidenced by an Opinion of Counsel for the Seller, addressed and
delivered to the Trust and the Trustee, adversely affect in any material respect
the interests of any Noteholder
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of such Series or Class. The Owner Trustee may, but shall not be obligated to,
enter into on behalf of the Trust any such amendment which affects the Owner
Trustee's rights, duties or immunities under this Agreement or otherwise.
(c) Promptly after the execution of any such amendment or consent
(other than an amendment pursuant to paragraph (a)), the Servicer shall furnish
notification of the substance of such amendment to the Trustee, each Rating
Agency, each Agent and each Enhancement Provider. Upon its receipt of any such
notice, the Trustee shall promptly forward a copy of such notice to each
Noteholder in accordance with the Indenture.
(d) It shall not be necessary for the consent of Noteholders under this
Section 13.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Noteholders shall be subject to such reasonable
requirements as the Trustee may prescribe.
(e) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement which would adversely affect in any
material respect the interests of any Enhancement Provider without the consent
of such Enhancement Provider.
(f) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement which would adversely affect in any
material respect the interests of any holders of the Seller's Certificates
issued by the Trust pursuant to the Trust Agreement without the consent of the
holders of Seller's Certificates evidencing not less than a majority of the
Percentage Interests (as defined in the Trust Agreement) of the outstanding
Seller's Certificates.
SECTION 13.02 Protection of Right, Title and Interest to Trust.
(a) The Servicer shall cause this Agreement, all amendments hereto
and/or all financing statements and continuation statements and any other
necessary documents covering the Trust's right, title and interest in and to the
Receivables and the Collateral Security to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Trust hereunder. The Servicer shall
deliver to the Trust and the Trustee file-stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. The Seller shall
cooperate fully with the Servicer in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill the
intent of this Section 13.02(a).
(b) Within 30 days after the Seller or the Servicer makes any change in
its name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with Section 13.02(a)
seriously misleading within the meaning of Section 9-506 of the UCC (including
as a result of a Designated Affiliate Transfer), the Seller shall give the
Trust, the Trustee and any Agent notice of any such change and shall file such
74
financing statements or amendments as may be necessary to continue the
perfection of the Trust's security interest in the Receivables and the proceeds
thereof.
(c) The Seller and the Servicer will give the Trust, the Trustee and
any Agent prompt written notice of any relocation of any office from which it
services Receivables or keeps records concerning the Receivables or of its
principal executive office and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Trust's security
interest in the Receivables and the proceeds thereof. The Seller and the
Servicer will at all times maintain each office from which it services
Receivables and its principal executive officer within the United States of
America.
(d) The Servicer will deliver to the Trust, the Trustee, any Agent and
any Enhancement Provider: (i) upon the execution and delivery of each amendment
of this Agreement, an Opinion of Counsel to the effect specified in Exhibit G-1;
(ii) on each Addition Date on which any Additional Accounts are to be included
as the Accounts pursuant to Section 2.05(a) or (b), an Opinion of Counsel
substantially in the form of Exhibit G-2; and (iii) on or before March 31 of
each year, beginning with March 31, 2005, an Opinion of Counsel substantially in
the form of Exhibit G-2.
SECTION 13.03 No Petition.
(a) Each of DCFS and the Trust, by entering into this Agreement, hereby
covenants and agrees that it will not at any time institute against DCWR any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law.
(b) Each of DCFS and DCWR, by entering into this Agreement, hereby
covenants and agrees that it will not at any time institute against the Trust
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law.
(c) Each of DCFS, DCWR and the Trust, by entering into this Agreement,
hereby covenants and agrees that it will not at any time institute against the
CARCO Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal or
state bankruptcy or similar law.
SECTION 13.04 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
75
SECTION 13.05 Notices.
All demands, notices, instructions, directions and communications
(collectively, "Notices") under this Agreement shall be in writing and shall be
deemed to have been duly given if sent by (a) certified or registered mail,
return receipt requested, postage prepaid, (b) national prepaid overnight
delivery service, (c) telecopy, facsimile or other electronic transmission
capable of transmitting or creating a written record or (d) personal delivery,
with receipt acknowledged in writing, to (i) in the case of DCWR, 27777 Inkster
Road, Farmington Hills, Michigan 48334, Attention: Assistant Secretary;
facsimile no.: (248) 427-2550, (ii) in the case of DCFS, 27777 Inkster Road,
Farmington Hills, Michigan 48334, Attention: Assistant Secretary; facsimile no.:
(248) 427-2550, (iii) in the case of the Trust or the Owner Trustee, Deutsche
Bank Trust Company Delaware, 1011 Centre Road, Suite 200, Wilmington, Delaware
19805-1266, Attention: Elizabeth B. Ferry;; facsimile no.: (302) 636-3222 (with
a copy to: Deutsche Bank Trust Company Americas, Structured Finance Services,
Trust & Securities Services, 60 Wall Street, 26th Floor - MS NYC60-2606, New
York, New York 10005, Attention: Michele Voon; facsimile no.: (212) 553-2461 and
(iv) in the case of the Trustee, its Corporate Trust Office; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
SECTION 13.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement.
SECTION 13.07 Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 8.02, this Agreement may not be assigned by the Servicer.
Each of the Seller and the Servicer hereby acknowledges and consents to any
mortgage, pledge, assignment and grant of a security interest by the Trust to
the Trustee pursuant to the Indenture for the benefit of the Noteholders and the
other Secured Parties of all right, title and interest of the Trust in, to and
under the Receivables and the related Collateral Security and/or the assignment
of any or all of the Trust's rights but none of its obligations hereunder to the
Trustee.
SECTION 13.08 Further Assurances.
The Seller and the Servicer agree to do and perform, from time to time,
any and all acts and to execute any and all further instruments required or
reasonably requested by the Trust, the Owner Trustee or the Trustee more fully
to effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to the Receivables for
filing under the provisions of the UCC of any applicable jurisdiction.
76
SECTION 13.09 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Trust, the Owner Trustee or the Trustee, any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege under this Agreement
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
provided under this Agreement are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
SECTION 13.10 Counterparts.
This Agreement may be executed in two or more counterparts (and by
different parties on separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same instrument.
SECTION 13.11 Third-Party Beneficiaries.
This Agreement will inure to the benefit of and be binding upon the
parties hereto, the Trustee, the Noteholders and the other Secured Parties and
their respective successors and permitted assigns. Except as otherwise provided
in this Agreement, no other Person will have any right or obligation hereunder.
SECTION 13.12 Rule 144A Information.
For so long as any of the Notes of any Series or Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, each
of the Seller and the Servicer agrees to cooperate with each other and with the
Trust to provide to any Noteholder of such Series or Class and to any
prospective purchaser of Notes designated by such Noteholder, upon the request
of such Noteholder or prospective purchaser, any information required to be
provided to such Holder or prospective purchaser to satisfy the conditions set
forth in Rule 144A(d)(4) under the Securities Act.
SECTION 13.13 Merger and Integration.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived, or supplemented
except as provided herein.
SECTION 13.14 Headings.
The headings herein are for purposes of reference only and shall not
otherwise affect the meaning or interpretation or any provision hereof.
77
SECTION 13.15 Limitation on Liability of the Owner Trustee and Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Deutsche Bank Trust Company Delaware not in
its individual capacity but solely in its capacity as Owner Trustee of the Trust
and in no event shall Deutsche Bank Trust Company Delaware in its individual
capacity or, except as expressly provided in the Trust Agreement, any beneficial
owner of the Trust have any liability for the representations, warranties,
covenants, agreements or other obligations of the Trust hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Trust. For all purposes
of this Agreement, in the performance of its duties or obligations hereunder or
in the performance of any duties or obligations of the Trust hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles V, VI and XI of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by The Bank of New York, not in its individual
capacity but solely as Trustee and in no event shall The Bank of New York have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Trust hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the Collateral of the Trust.
78
IN WITNESS WHEREOF, the parties below have caused this Amended and
Restated Sale and Servicing Agreement to be duly executed by their respective
officers as of the day and year first above written.
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC,
Seller
By: /s/ D. Smidt
-------------------------------------
Name: D. Smidt
Title: Assistant Controller
DAIMLERCHRYSLER FINANCIAL SERVICES
AMERICAS LLC,
Servicer
By: /s/ D. Smidt
-------------------------------------
Name: D. Smidt
Title: Assistant Controller
DAIMLERCHRYSLER MASTER OWNER TRUST
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity, but solely as Owner Trustee
By: /s/ Jenna Kaufman
-------------------------------------
Name: Jenna Kaufman
Title: Attorney-in-fact
Acknowledged and agreed as of the day
and year first above written:
THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By: /s/ Antonio Vayas
------------------------------------
Name: Antonio Vayas
Title: Assistant Vice President
Acknowledged and agreed as of the day
and year first above written
solely with respect to Article XI hereof:
DEUTSCHE BANK TRUST
COMPANY DELAWARE,
not in its individual capacity, but
solely as Owner Trustee
By: /s/ Jenna Kaufman
-------------------------------------
Name: Jenna Kaufman
Title: Attorney-in-fact
EXHIBIT A
[INTENTIONALLY OMITTED]
A-1
EXHIBIT B
FORM OF
ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.05
of the Amended and Restated Sale and Servicing Agreement)
ASSIGNMENT NO. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
_______________, _____ (this "Assignment"), among DaimlerChrysler Wholesale
Receivables LLC, as seller (the "Seller"), DaimlerChrysler Financial Services
Americas LLC, as servicer (the "Servicer"), and DaimlerChrysler Master Owner
Trust (the "Trust"), pursuant to the Sale and Servicing Agreement referred to
below.
WITNESSETH:
WHEREAS the Seller, the Servicer and the Trust are parties to an
Amended and Restated Sale and Servicing Agreement dated as of November 28, 2006
(as amended or supplemented, the "Agreement");
WHEREAS, pursuant to the Agreement, the Seller wishes to designate
Additional Accounts to be included as Accounts and to convey the Receivables and
related Collateral Security of such Additional Accounts, whether now existing or
hereafter created, to the Trust which, in turn, shall grant a security interest
in all such conveyed property to the Trustee pursuant to the Indenture (as each
such term is defined in the Agreement); and
WHEREAS the Trust is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller, the Servicer and the Trust hereby agree as
follows:
1. Defined Terms. All capitalized terms used herein shall have the
meanings ascribed to them in the Agreement unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, _______________, _____.
"Additional Accounts" shall mean, the Additional Accounts, as defined
in the Agreement, that are designated hereby and listed on Schedule 1 hereto.
"Additional Cut-Off Date" shall mean, with respect to the Additional
Accounts designated hereby, ___________, _____.
2. Designation of Additional Accounts. The Seller hereby delivers
herewith a computer file or microfiche or written list containing a true and
complete list of all such
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Additional Accounts specifying for each such Account, as of the Additional
Cut-Off Date, its account number, the aggregate amount of Receivables
outstanding in such Account and the aggregate amount of Principal Receivables in
such Account. Such file, microfiche or list shall be marked as Schedule 1 to
this Assignment and shall, as of the date of this Assignment, be incorporated
into and made a part of this Assignment and shall supplement Schedule 1 to the
Agreement.
3. Conveyance of Receivables. (a) The Seller does hereby sell,
transfer, assign, set over and otherwise convey, without recourse (except as
expressly provided in the Agreement), to the Trust, all of its right, title and
interest in, to and under the Receivables in such Additional Accounts and all
Collateral Security with respect thereto owned by the Seller and existing at the
close of business on the Additional Cut-Off Date and thereafter created from
time to time until the termination of the Trust, all monies due or to become due
and all amounts received with respect thereto and all proceeds (including
Recoveries) thereof. The foregoing sale, transfer, assignment, set-over and
conveyance does not constitute, and is not intended to result in the creation or
an assumption by the Trust, the Owner Trustee, the Trustee, any Agent, any
Noteholder or any Enhancement Provider of any obligation of the Servicer, the
Seller, DCFS, DaimlerChrysler or any other Person in connection with the
Accounts, the Receivables or under any agreement or instrument relating thereto,
including any obligation to any Dealers.
(b) In connection with such sale, the Seller agrees to record and file,
at its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) with respect to the Receivables now existing and
hereafter created for the sale of "tangible chattel paper", "accounts" or
"payment intangibles" (each as defined in Section 9-102 of the UCC as in effect
in the relevant jurisdiction) meeting the requirements of applicable state law
in such manner and in such jurisdictions as are necessary to perfect the sale
and assignment of the Receivables and the Collateral Security to the Trust, and
to deliver a file-stamped copy of such financing statements or other evidence of
such filing to the Trustee on or prior to the Addition Date. The Trustee shall
be under no obligation whatsoever to file such financing statement, or a
continuation statement to such financing statement, or to make any other filing
under the UCC in connection with such sales.
(c) In connection with such sale, the Seller further agrees, at its own
expense, on or prior to the Addition Date, to indicate in its computer files
that the Receivables created in connection with the Additional Accounts
designated hereby have been sold and the Collateral Security assigned to the
Trust pursuant to this Assignment, and pledged by the Trust to the Trustee for
the benefit of the Noteholders and the other Secured Parties pursuant to the
Indenture.
(d) The parties hereto intend that the transfers of Receivables and
related Collateral Security effected by this Assignment be sales. Nevertheless,
if such transfers are deemed to be transfers for security, then this Assignment
also shall be deemed to be and hereby is a security agreement within the meaning
of the UCC, and the conveyance by the Seller provided for in this Assignment
shall also be deemed to be and hereby is a grant by the Seller to the Trust of a
security interest in all of the Seller's right, title and interest, whether now
owned or hereafter acquired, in, to and under such Receivables and related
Collateral Security. For tax purposes, the parties hereto intend that all
transfers of Receivables and related Collateral Security
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under this Assignment constitute transfers of such Receivables and related
Collateral Security as security for a loan.
4. Acceptance by the Trust. Subject to the satisfaction of the
conditions set forth in Section 6 of this Assignment, the Trust hereby
acknowledges its acceptance of all right, title and interest previously held by
the Seller to the property, now existing and hereafter created, conveyed to the
Trust pursuant to Section 3(a) of this Assignment. The Trust further
acknowledges that, prior to or simultaneously with the execution and delivery of
this Assignment, the Seller delivered to the Trust and the Trustee the computer
file or microfiche or written list relating to the Additional Accounts described
in Section 2 of this Assignment. The Trustee shall be under no obligation
whatsoever to verify the accuracy or completeness of the information contained
in such file or list.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Trust as of the date of this Assignment and as of
the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting creditors' rights in general and except as such enforceability
may be limited by general principles of equity (whether considered in a
suit at law or in equity);
(b) Eligible Accounts. Each Additional Account designated hereby
is an Eligible Account;
(c) Selection Procedures. No selection procedures believed by the
Seller to be adverse to the interests of the Trust, the Noteholders or any
Enhancement Providers were utilized in selecting the Additional Accounts
designated hereby;
(d) Insolvency. As of the Notice Date and the Addition Date, the
Seller is not insolvent nor, after giving effect to the conveyance set
forth in Section 3 of this Assignment, will the Seller have been made
insolvent, nor is the Seller aware of any pending insolvency;
(e) Valid Transfer. This Assignment constitutes a valid sale,
transfer and assignment to the Trust of all right, title and interest of
the Seller in the Receivables and the Collateral Security and the proceeds
thereof and upon the filing of the financing statements described in
Section 3 of this Assignment with the Secretary of State of the State of
Delaware and other applicable states and, in the case of the Receivables
and the Collateral Security hereafter created and the proceeds thereof,
upon the creation thereof, the Trust shall have a first priority perfected
ownership interest in such property, subject to the rights of the Purchased
Receivables Owners in any Collateral Security in respect of the Partial
Accounts (other than the Vehicles relating to Principal Receivables arising
in the Partial Accounts), except for Liens permitted under the Receivables
Purchase Agreement. Except as otherwise provided in the Agreement and
except for Liens permitted under the Receivables Purchase
B-3
Agreement or the other Transaction Documents, neither the Seller nor any
Person claiming through or under the Seller has any claim to or interest in
the Collateral of the Trust;
(f) No Conflict. The execution and delivery of this Assignment,
the performance of the transactions contemplated by this Assignment and the
fulfillment of the terms hereof, will not conflict with, result in any
breach of any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which the Seller is a party or by which it or its properties
are bound;
(g) No Violation. The execution and delivery of this Assignment by
the Seller, the performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof applicable to the Seller
will not conflict with or violate any material Requirements of Law
applicable to the Seller;
(h) No Proceedings. There are no proceedings or, to the best
knowledge of the Seller, investigations pending or threatened against the
Seller before any Governmental Authority (i) asserting the invalidity of
this Assignment, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Assignment, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Seller,
would materially and adversely affect the performance by the Seller of its
obligations under this Assignment, (iv) seeking any determination or ruling
that would materially and adversely affect the validity or enforceability
of this Assignment or (v) seeking to affect adversely the income tax
attributes of the Trust under the United States Federal or any State
income, single business or franchise tax systems;
(i) Record of Accounts. As of the Addition Date, Schedule 1 to
this Assignment is an accurate and complete listing in all material
respects of all the Additional Accounts as of the Additional Cut-Off Date
and the information contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true and correct in all
material respects as of the Additional Cut-Off Date;
(j) No Liens. Each Receivable and all Collateral Security existing
on the Addition Date has been conveyed to the Trust free and clear of any
Lien, subject to the rights of the Purchased Receivables Owners in any
Collateral Security in respect of the Partial Accounts (other than the
Vehicles relating to Principal Receivables arising in the Partial Accounts)
and except for Liens permitted under the Receivables Purchase Agreement;
(k) All Consents Required. With respect to each Receivable and all
Collateral Security existing on the Addition Date, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by the
Seller in connection with the conveyance of such Receivable or Collateral
Security to the Trust, the execution and delivery of this
B-4
Assignment and the performance of the transactions contemplated hereby have
been duly obtained, effected or given and are in full force and effect; and
(l) Eligible Receivables. On the Additional Cut-Off Date each
Receivable conveyed to the Trust as of such date is an Eligible Receivable
or, if such Receivable is not an Eligible Receivable, such Receivable is
conveyed to the Trust in accordance with Section 2.09 of the Agreement.
6. Conditions Precedent. The acceptance of the Trustee set forth in
Section 5 of this Assignment is subject to the satisfaction, on or prior to the
Addition Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by the Seller in Section 5 of this Assignment shall be
true and correct as of the date of this Assignment and as of the Addition
Date;
(b) Agreement. Each of the conditions set forth in Section 2.05(d)
of the Agreement applicable to the designation of the Additional Accounts
to be designated hereby shall have been satisfied; and
(c) Officers' Certificate. The Seller shall have delivered to the
Trust and the Trustee an Officers' Certificate, dated the date of this
Assignment, in which an officer of the Seller shall state that the
representations and warranties of the Seller under Section 5 hereof are
true and correct. The Trustee may conclusively rely on such Officers'
Certificate, shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying.
7. Ratification of Agreement. As supplemented by this Assignment, the
Agreement is in all respects ratified and confirmed and the Agreement as so
supplemented by this Assignment shall be read, taken and construed as one and
the same instrument.
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW),
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Limitation on Liability of the Owner Trustee and Trustee. (a)
Notwithstanding anything contained herein to the contrary, this Assignment has
been countersigned by Deutsche Bank Trust Company Delaware not in its individual
capacity but solely in its capacity as Owner Trustee of the Trust and in no
event shall Deutsche Bank Trust Company Delaware in its individual capacity or,
except as expressly provided in the Trust Agreement, any beneficial owner of the
Trust have any liability for the representations, warranties, covenants,
agreements or other obligations of the Trust hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Trust. For all purposes
of this Assignment, in the performance of its duties or obligations hereunder or
in the performance of any duties or obligations of the Trust hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles V, VI and XI of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Assignment has been accepted by The Bank of New York, not in its individual
capacity but solely as Trustee and in no event shall The Bank of New York have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Trust hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the Collateral of the Trust.
B-5
IN WITNESS WHEREOF, the Seller, the Servicer and the Trust have caused
this Assignment to be duly executed and delivered by their respective duly
authorized officers as of the day and the year first above written.
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC,
as Seller
By:_____________________________________
Name:
Title:
DAIMLERCHRYSLER FINANCIAL SERVICES
AMERICAS LLC,
as Servicer
By:_____________________________________
Name:
Title:
DAIMLERCHRYSLER MASTER OWNER TRUST
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity, but solely as Owner Trustee
By:_____________________________________
Name:
Title:
Acknowledged and agreed as of the day
and year first above written:
THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By:_____________________________________
Name:
Title:
B-6
EXHIBIT C
FORM OF
ANNUAL SERVICER'S CERTIFICATE
(As required to be delivered pursuant to
Section 3.05 of the Amended and Restated Sale and Servicing Agreement)
DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS LLC
----------------------------------------------
DAIMLERCHRYSLER MASTER OWNER TRUST
----------------------------------------------
The undersigned, duly authorized representatives of DaimlerChrysler
Financial Services Americas LLC ("DCFS"), pursuant to the Amended and Restated
Sale and Servicing Agreement, dated as of November 28, 2006 (as amended and
supplemented, the "Agreement"), among DaimlerChrysler Wholesale Receivables LLC,
as seller (the "Seller"), DCFS, as servicer (the "Servicer"), and
DaimlerChrysler Master Owner Trust (the "Trust"), do hereby certify that:
1. DCFS is, as of the date hereof, the Servicer under the Agreement.
2. The undersigned are Servicing Officers and are duly authorized
pursuant to the Agreement to execute and deliver this Certificate to the
Trustee, the Trust, any Agent and any Enhancement Providers.
3. A review of the activities of the Servicer during the calendar year
ended December 31, _______, and of its performance under the Agreement was
conducted under our supervision.
4. Based on such review, the Servicer has, to the best of our
knowledge, performed in all material respects all of its obligations under
the Agreement throughout such year and no default in the performance of
such obligations has occurred or is continuing except as set forth in
paragraph 5 below.
5. The following is a description of each default in the performance of
the Servicer's obligations under the provisions of the Agreement known to
us to have been made by the Servicer during the year ended December 31,
_______, which sets forth in detail the (a) nature of each such default,
(b) the action taken by the Servicer, if any, to remedy each such default
and (c) the current status of each such default: [If applicable, insert
"None".]
Capitalized terms used but not defined herein are used as defined in
the Agreement.
C-1
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Certificate this _____ day of ________________, _______.
________________________________________
Name:
Title:
________________________________________
Name:
Title:
C-2
EXHIBIT D
[INTENTIONALLY OMITTED]
D-1
EXHIBIT E
[INTENTIONALLY OMITTED]
E-1
EXHIBIT F
[INTENTIONALLY OMITTED]
F-1
EXHIBIT G-1
FORM OF
OPINION OF COUNSEL
Provisions to be Included in Opinion of Counsel to be
Delivered Pursuant to Section 13.02(d)(i)
(i) The Amendment to the Amended and Restated Sale and
Servicing Agreement, attached hereto as Schedule 1 (the "Amendment"), has been
duly authorized, executed and delivered by the Seller and constitutes the legal,
valid and binding agreement of the Seller, enforceable in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally from time to time in effect. The enforceability of the Seller's
obligations is also subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(ii) The Amendment has been entered into in accordance with
the terms and provisions of Section 13.01 of the Amended and Restated Sale and
Servicing Agreement.
(iii) The Amendment will not adversely affect in any material
respect the interests of the Noteholders. [Include this clause (iii) only in the
case of amendments effected pursuant to Section 13.01(a) of the Amended and
Restated Sale and Servicing Agreement.]
G-1-1
EXHIBIT G-2
FORM OF
OPINION OF COUNSEL
Provisions to be Included in Opinion of Counsel to be
Delivered Pursuant to Section 13.02(d)(ii) and (iii)*
The opinions set forth below may be subject to all the qualifications,
assumptions, limitations and exceptions taken or made in the opinion of counsel
to DaimlerChrysler Wholesale Receivables LLC (the "Seller") delivered on any
Closing Date. Capitalized terms used but not defined herein are used as defined
in the Amended and Restated Sale and Servicing Agreement, dated as of November
28, 2006 (as amended and supplemented, the "Sale and Servicing Agreement"),
among the Seller, as seller, DaimlerChrysler Financial Services Americas LLC, as
servicer (the "Servicer"), and DaimlerChrysler Master Owner Trust (the "Trust").
[(a) The Assignment has been duly authorized, executed and delivered by
the Seller, and constitutes the valid and legally binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.]
(b) Assuming the Receivables [in the Additional Accounts] are created
under, and are evidenced solely by, Floorplan Financing Agreements, such
Receivables will constitute "tangible chattel paper", "accounts" or "payment
intangibles" (each as defined under Section 9-102 of the UCC as in effect in the
relevant jurisdiction). We note that DaimlerChrysler Financial Services Americas
LLC has given us an Officers' Certificate to the effect that the Receivables are
created under Floorplan Financing Agreements.
(c) If the transfer of the Receivables [in the Additional Accounts] and
all [of the related] Collateral Security to the Trust pursuant to the Sale and
Servicing Agreement constitutes a true sale of such Receivables and Collateral
Security to the Trust:
(i) with respect to such Receivables and Collateral Security in
existence on the date hereof, such sale transfers all of the right, title
and interest of the Seller in and to such Receivables and Collateral
Security to the Trust, free and clear of any liens now existing or
hereafter created, but subject to the rights of the Seller as holder of the
DCMOT Certificate;
(ii) with respect to such Receivables and Collateral Security
which come into existence after the date hereof, upon the creation of such
Receivables and Collateral Security and the subsequent transfer of such
Receivables and Collateral Security to the Trust in accordance with the
Sale and Servicing Agreement and receipt by
____________________
* Include bracketed language only in the case of additions of Accounts effected
pursuant to Section 2.05 of the Pooling and Servicing Agreement.
G-2-1
the Seller of the consideration therefor required pursuant to the Sale and
Servicing Agreement, such sale will transfer all of the right, title and
interest of the Seller in and to such Receivables and Collateral Security
to the Trust free and clear of any liens, but subject to the rights of the
Seller as holder of the DCMOT Certificate;
and, in either case, no further action will thereafter be required under
Michigan, Delaware or federal law to protect the Trust's ownership interest in
the Receivables and the Collateral Security against creditors of, or subsequent
purchasers from, the Seller.
(d) If the transfer of the Receivables and Collateral Security to the
Trust pursuant to the Sale and Servicing Agreement does not constitute a true
sale of the Receivables and the Collateral Security to the Trust, then the Sale
and Servicing Agreement as amended and supplemented by the Assignment creates a
valid security interest in favor of the Trust in the Seller's right, title and
interest in and to the Receivables and the Collateral Security and the proceeds
thereof securing the obligations of the Seller thereunder. Financing statements
on form UCC-1 having been filed in the offices of the Secretaries of State of
the States of Michigan and [other applicable states] and accordingly, such
security interest constitutes a perfected security interest in such Receivables
and Collateral Security and the proceeds thereof subject to no prior liens,
enforceable as such against creditors of, and subsequent purchasers from, the
Seller, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws relating to or affecting creditors' rights generally
and to general equity principles.
G-2-2
EXHIBIT H
FORM OF
REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.07
of the Amended and Restated Sale and Servicing Agreement)
REASSIGNMENT NO. ___ OF RECEIVABLES IN REMOVED ACCOUNTS dated as of
_______________, _____ (this "Reassignment"), by and between DaimlerChrysler
Wholesale Receivables LLC, , a Delaware limited liability company (the
"Seller"), and DaimlerChrysler Master Owner Trust, Delaware statutory trust (the
"Trust"), pursuant to the Sale and Servicing Agreement referred to below.
WITNESSETH:
WHEREAS the Seller, DaimlerChrysler Financial Services Americas LLC, as
servicer (the "Servicer"), and the Trust are parties to an Amended and Restated
Sale and Servicing Agreement dated as of November 28, 2006 (as amended or
supplemented, the "Agreement");
WHEREAS, pursuant to the Agreement, the Seller wishes to remove all
Receivables from certain Removed Accounts (the "Removed Accounts") and the
Collateral Security thereof and to cause the Trust to reconvey the Receivables
of such Removed Accounts and such Collateral Security, whether now existing or
hereafter created, from the Trust to the Seller (as each such term is defined in
the Agreement); and
WHEREAS the Trust is willing to accept such designation and to reconvey
the Receivables in the Removed Accounts and such Collateral Security subject to
the terms and conditions hereof;
NOW, THEREFORE, the Seller and the Trust hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein
shall have such defined meanings when used herein, unless otherwise defined
herein.
"Removal Commencement Date" shall mean, with respect to the Removal
Accounts designated hereby, _______________, _____.
"Removal Date" shall mean, with respect to the Removed Accounts
designated hereby, _______________, _____.
"Removed Accounts" shall mean, the Removed Accounts, as defined in the
Agreement, that are designated hereby and listed on Schedule 1 hereto.
H-1
2. Designation of Removed Accounts. The Seller shall deliver to the
Trust and the Trustee, any Enhancement Providers and the Rating Agencies a
computer file or microfiche or written list containing a true and complete list
of the Removed Accounts, specifying for each such Account, as of the Removal
Commencement Date, its account number, the aggregate amount of Receivables
outstanding in such Accounts and the Designated Balance. Such list shall be
marked as Schedule 1 to this Reassignment and shall be incorporated into and
made a part of this Reassignment as of the Removal Date and shall amend Schedule
1 to the Agreement.
3. Conveyance of Receivables and Accounts. (a) The Trust does hereby
transfer, assign, set over and otherwise convey to the Seller, without recourse,
representation or warranty on and after the Removal Date, all right, title and
interest of the Trust in, to and under all Receivables now existing at the close
of business on the Removal Date and thereafter created from time to time until
the termination of the Trust in Removed Accounts designated hereby, all
Collateral Security thereof, all monies due or to become due and all amounts
received with respect thereto (including all Non-Principal Receivables) and all
proceeds (including Recoveries) thereof.
(b) If requested by the Seller, in connection with such transfer, the
Trust agrees to execute and deliver, or cause to be executed and delivered, to
the Seller on or prior to the date of this Reassignment, a termination statement
with respect to the Receivables existing at the close of business on the Removal
Date and thereafter created from time to time and Collateral Security thereof in
the Removed Accounts reassigned hereby (which may be a single termination
statement with respect to all such Receivables and Collateral Security)
evidencing the release by the Trust or by the Trustee, as applicable, of its
lien on the Receivables in the Removed Accounts and the Collateral Security, and
meeting the requirements of applicable state law, in such manner and such
jurisdictions as are necessary to remove such lien.
4. Acceptance by the Trust. The Trust hereby acknowledges that, prior
to or simultaneously with the execution and delivery of this Reassignment, the
Seller delivered to the Trust and the Trustee the computer file or such
microfiche or written list described in Section 2 of this Reassignment.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Trust as of the date of this Reassignment and as
of the Removal Date:
(a) Legal, Valid and Binding Obligation. This Reassignment constitutes
a legal, valid and binding obligation of the Seller, enforceable against
the Seller in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the enforcement
of creditors' rights generally and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity);
(b) No Early Redemption Event. The removal of the Accounts hereby
removed shall not, in the reasonable belief of the Seller, cause an Early
Redemption
H-2
Event to occur or cause the Pool Balance to be less than the Required
Participation Amount;
(c) Selection Procedures. No selection procedures believed by the
Seller to be adverse to the interests of the Trust, the Noteholders or any
Enhancement Providers were utilized in selecting the Designated Accounts
[and the selection procedures were applied so as to randomly select the
Designated Account from the entire population of Accounts]; and
(d) True and Complete List. The list of Removed Accounts described in
Section 2 of this Reassignment is, as of the Removal Commencement Date,
true and complete in all material respects;
provided, however, that in the event that the removal on such Removal Date
relates solely to Ineligible Accounts, the Seller shall be deemed to make only
the representations and warranties contained in paragraph 5(a) above.
6. Conditions Precedent. In addition to the conditions precedent set
forth in Section 2.07 of the Agreement, the obligation of the Trust to execute
and deliver this Reassignment is subject to the satisfaction, on or prior to the
Removal Commencement Date, of the following additional condition precedent:
Officers' Certificate. The Seller shall have delivered to the
Trust and the Trustee an Officers' Certificate certifying that (i) as of
the Removal Commencement Date, all requirements set forth in Section 2.07
of the Agreement for designating Removed Accounts and reconveying the
Receivables of such Removed Accounts and the Collateral Security, whether
existing at the close of business on the Removal Date or thereafter created
from time to time until the termination of the Trust, have been satisfied,
and (ii) each of the representations and warranties made by the Seller in
Section 5 hereof is true and correct as of the date of this Reassignment
and as of the Removal Commencement Date. The Trustee may conclusively rely
on such Officers' Certificate, shall have no duty to make inquiries with
regard to the matters set forth therein and shall incur no liability in so
relying.
7. Ratification of Agreement. As supplemented by this Reassignment, the
Agreement is in all respects ratified and confirmed and the Agreement as so
supplemented by this Reassignment shall be read, taken and construed as one and
the same instrument.
8. Counterparts. This Reassignment may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW),
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
H-3
10. Limitation on Liability of the Owner Trustee and Trustee. (a)
Notwithstanding anything contained herein to the contrary, this Reassignment has
been countersigned by Deutsche Bank Trust Company Delaware not in its individual
capacity but solely in its capacity as Owner Trustee of the Trust and in no
event shall Deutsche Bank Trust Company Delaware in its individual capacity or,
except as expressly provided in the Trust Agreement, any beneficial owner of the
Trust have any liability for the representations, warranties, covenants,
agreements or other obligations of the Trust hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Trust. For all purposes
of this Reassignment, in the performance of its duties or obligations hereunder
or in the performance of any duties or obligations of the Trust hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles V, VI and XI of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Reassignment has been accepted by The Bank of New York, not in its individual
capacity but solely as Trustee and in no event shall The Bank of New York have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Trust hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the Collateral of the Trust.
H-4
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC,
Seller
By:_____________________________________
Name:
Title:
DAIMLERCHRYSLER MASTER OWNER TRUST
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity, but solely as Owner Trustee
By:_____________________________________
Name:
Title:
Acknowledged and agreed as of the day
and year first above written:
THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By:_____________________________________
Name:
Title:
H-5
EXHIBIT I
[INTENTIONALLY OMITTED]
I-1
EXHIBIT J
FORM OF
SUBORDINATED NOTE
New York, New York
December 16, 2004
FOR VALUE RECEIVED, the undersigned, DaimlerChrysler Wholesale
Receivables LLC, a Delaware limited liability company (the "Company"), hereby
unconditionally promises to pay to the order of DaimlerChrysler Financial
Services Americas LLC, a Michigan limited liability company ("DCFS"), in lawful
money of the United States of America in immediately available funds the
principal amount outstanding on December 16, 2024 (the "Maturity Date"), in
respect of monies borrowed by the Company from time to time to fund the purchase
of Receivables by the Company from DCFS pursuant to the Second Amended and
Restated Receivables Purchase Agreement dated as of December 16, 2004 (as
amended or supplemented from time to time, the "Receivables Purchase
Agreement"), between the Company and DCFS. The Company may, at its option,
prepay this Subordinated Note in whole or in part at any time and from time to
time from and after the date hereof; provided, however, that in no event shall
the holder hereof have any right to demand any payment of principal hereunder
prior to the Maturity Date.
Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Sale and Servicing Agreement dated as of
December 16, 2004 (as amended or supplemented from time to time, the "Sale and
Servicing Agreement"), among the Company, as seller, DCFS, as servicer, and
DaimlerChrysler Master Owner Trust (the "Issuer").
The undersigned further agrees to pay interest in like money on the
unpaid principal amount hereof from time to time from the date hereof at a rate
per annum equal to [___________________________]. Interest shall be payable in
arrears on each Payment Date commencing on the first such date to occur after
the date hereof and upon final payment of the unpaid principal amount hereof.
This Subordinated Note is subordinate and junior in right and time of
payment to all "Senior Debt" of the Company, which is any Indebtedness of the
Company and all renewals, extensions, refinancings and refundings thereof,
except any such Indebtedness that expressly provides that it is not senior or
superior in right of payment hereto. "Indebtedness" is any indebtedness, whether
or not contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereto) whether any such indebtedness would appear as a
liability upon a balance sheet of the Company prepared on a consolidated basis
in accordance with generally accepted accounting principles.
All scheduled payments of principal and interest in respect of Senior
Debt must be paid before this Subordinated Note shall be payable, and all
scheduled payments of principal and interest on this Subordinated Note shall be
payable only to the extent that the Company, after
J-1
paying all of its accounts payable and other current expenses, has the funds to
make such payments. The Company agrees, and the holder hereof by accepting this
Subordinated Note agrees, to the subordination provisions herein contained.
Notwithstanding any provisions herein to the contrary, the obligations of the
Company hereunder shall not be recourse to the Issuer or any assets thereof
pledged under the Amended and Restated Indenture dated as of December 16, 2004,
between the Issuer and The Bank of New York, as indenture trustee.
The holder of this Subordinated Note, by its acceptance hereof, hereby
covenants and agrees that it will not at any time institute against the Company
or the Issuer any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law.
IN WITNESS WHEREOF, the Company has caused this Subordinated Note to be
duly executed as of the day and year first above written.
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
By:_______________________________________
Name:
Title:
J-2
EXHIBIT K
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") dated as of
_______________, _____ (the "Assumption Date"), by and among DAIMLERCHRYSLER
WHOLESALE RECEIVABLES LLC, a Delaware limited liability company headquartered in
Farmington Hills, Michigan ("DCWR"), [DESIGNATED AFFILIATE], a [___________]
[corporation] headquartered in [________________] (the "Designated Affiliate"),
and DAIMLERCHRYSLER MASTER OWNER TRUST, a Delaware statutory trust (the
"Trust"), pursuant to the Sale and Servicing Agreement referred to below.
WHEREAS DCWR, the Trust and DaimlerChrysler Financial Services Americas
LLC, as servicer (the "Servicer"), are parties to the Amended and Restated Sale
and Servicing Agreement dated as of November 28, 2006 (as amended or
supplemented, the "Sale and Servicing Agreement");
WHEREAS DCWR wishes to sell, transfer, assign and otherwise convey all,
but not less than all, of its right, title and interest in the Collateral of the
Trust, the Seller's Interest, the DCMOT Certificate, the Sale and Servicing
Agreement, the Related Documents and any other agreement, document or instrument
relating to the Sale and Servicing Agreement or the transactions contemplated
thereby (the "Trust Documents") and its obligations thereunder to the Designated
Affiliate pursuant to a Designated Affiliate Transfer as set forth in Section
7.04 of the Sale and Servicing Agreement;
WHEREAS the Designated Affiliate agrees to assume the performance of
every covenant and obligation of DCWR under the Sale and Servicing Agreement,
the Related Documents and the Trust Documents; and
WHEREAS the Trust is willing to accept an assignment to and assumption
by the Designated Affiliate, subject to the terms and conditions hereof and of
the Sale and Servicing Agreement;
NOW, THEREFORE, DCWR, the Designated Affiliate and the Trust hereby
agree as follows:
1. Defined Terms. All terms defined in the Sale and Servicing Agreement
and used herein shall have such defined meanings when used herein, unless
otherwise defined herein.
2. Conveyance. By execution of this Agreement, DCWR does hereby sell,
transfer, assign and otherwise convey all, but not less than all, of its right,
title and interest in the Collateral of the Trust, the Seller's Interest, the
DCMOT Certificate, the Sale and Servicing
K-1
Agreement, the Related Documents and the Trust Documents, and its obligations,
as Seller thereunder, to the Designated Affiliate.
3. Records. The Designated Affiliate agrees, at its own expense, on or
prior to the Assumption Date, to indicate in its computer files and to cause
DCWR and DCFS to indicate in their computer files that the Receivables created
in connection with the Accounts (other than Removed Accounts) have been sold,
and the Collateral Security assigned, to the Designated Affiliate in accordance
with the Receivables Purchase Agreement, and sold to the Trust pursuant to the
Sale and Servicing Agreement, and pledged by the Trust to the Trustee for the
benefit of the Noteholders and the other Secured Parties pursuant to the
Indenture.
4. Assumption of Duties. (a) DCWR hereby agrees that prior to the date
of this Agreement it shall be bound by all the provisions and requirements of
and assume all of the responsibilities under the Sale and Servicing Agreement,
the Related Documents and the Trust Documents, applicable to DCWR. The
Designated Affiliate hereby agrees that on and after the date of this Agreement
it shall be bound by all the provisions and requirements of and assume the
performance of every covenant and obligation and all of the responsibilities and
duties under the Sale and Servicing Agreement, the Related Documents and the
Trust Documents applicable to DCWR.
(b) In connection with such assumption, the Designated Affiliate agrees
to record and file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to (i) the Receivables now
existing and created on or after the Assumption Date in the Accounts (which may
be a single financing statement with respect to all such Receivables) for the
sale of "tangible chattel paper", "accounts" or "payment intangibles" (each as
defined in Section 9-102 of the UCC as in effect in the relevant jurisdiction)
and (ii) all other Collateral now existing and created on or after the
Assumption Date, meeting the requirements of applicable state law in such manner
and in such jurisdictions as are necessary to perfect the sale, transfer and
assignment of such Receivables and other Collateral to the Trust, and to deliver
a file-stamped copy of such financing statements or other evidence of such
filing (which may, for purposes of this Section 4, consist of telephone
confirmation of such filing, confirmed within 24 hours in writing) to the
Trustee on or prior to the Assumption Date.
5. Acceptance by the Trust. The Trust hereby acknowledges its
acceptance of such assignment and assumption. The foregoing assignment and
assumption does not constitute, and is not intended to result in the creation or
an assumption by the Trust, the Owner Trustee, the Trustee, any Agent, any
Noteholder or any Enhancement Provider of any obligation of the Servicer, DCFS,
the Seller, DaimlerChrysler, the Designated Affiliate or any other Person in
connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to any Dealers.
K-2
6. Representations and Warranties of the Designated Affiliate and DCWR.
In addition to the representations and warranties deemed to have been made by
the Designated Affiliate in respect of the Accounts and Receivables thereunder
pursuant to Section 7.04(c) of the Sale and Servicing Agreement, the Designated
Affiliate and DCWR hereby also represent and warrant to the Trust as of the
Assumption Date:
(a) Legal, Valid and Binding Obligation. This Agreement
constitutes a legal, valid and binding obligation of the Designated
Affiliate and DCWR, enforceable against the Designated Affiliate and DCWR
in accordance with its terms;
(b) Insolvency. Neither the Designated Affiliate nor DCWR is
insolvent; and, after giving effect to the transactions contemplated by
this Agreement, neither the Designated Affiliate nor DCWR will be
insolvent; and
(c) Interests in Collateral. The interests of the Trust and of the
Trustee in the Receivables and other Collateral continues to remain in full
force and effect and have not been interrupted or impaired by the signing
of this Agreement and such interests remain prior to all others except as
set forth in the Sale and Servicing Agreement.
7. Conditions Precedent. The acceptance of the Trust set forth in
Section 5 is subject to the satisfaction, on or prior to the Assumption Date, of
the conditions precedent referred to in Section 7.04(b) of the Sale and
Servicing Agreement and of the following additional conditions precedent:
(a) DCWR shall have transferred the DCMOT Certificate to the
Designated Affiliate as set forth in Section 7.04(c) of the Sale and
Servicing Agreement.
(b) The payment of any other consideration has been completed as
certified by the Designated Affiliate to the Trust.
(c) The Designated Affiliate shall have delivered to the Trust and
the Trustee an Officers' Certificate, dated the date of this Agreement, in
which an officer of the Designated Affiliate shall state that, to the best
of his knowledge after reasonable investigation, the representations and
warranties of the Designated Affiliate in its capacities as Seller under
Section 2.03 and Section 2.04 of the Sale and Servicing Agreement are true
and correct.
(d) DCWR shall have delivered to the Trust and the Trustee an
Opinion of Counsel dated the Assumption Date in the form attached hereto as
Exhibit A.
8. Sale and Servicing Agreement. The Designated Affiliate, DCWR and the
Trust hereby agree that from and after the Assumption Date, the terms "Seller"
and "DCWR" (other than "DCMOT Certificate") in the Sale and Servicing Agreement,
the Related Documents and the Trust Documents shall refer to the Designated
Affiliate. Except as expressly amended hereby, all of the representations,
warranties, terms, covenants and conditions of the Sale and Servicing Agreement,
the Related Documents and the Trust Documents applicable to DCWR shall remain
unamended and shall continue to be, and shall remain, in full force and effect
in accordance with their terms and, except as expressly provided herein, the
execution and delivery
K-3
of this Agreement by the Trustee shall not constitute or be deemed to constitute
a waiver of compliance with or a consent to non-compliance with any term or
provision of the Sale and Servicing Agreement, the Related Documents and the
Trust Documents.
9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW),
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute but one and the
same instrument.
11. Limitation on Liability of the Owner Trustee and Trustee. (a)
Notwithstanding anything contained herein to the contrary, this Agreement has
been countersigned by Deutsche Bank Trust Company Delaware not in its individual
capacity but solely in its capacity as Owner Trustee of the Trust and in no
event shall Deutsche Bank Trust Company Delaware in its individual capacity or,
except as expressly provided in the Trust Agreement, any beneficial owner of the
Trust have any liability for the representations, warranties, covenants,
agreements or other obligations of the Trust hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Trust. For all purposes
of this Agreement, in the performance of its duties or obligations hereunder or
in the performance of any duties or obligations of the Trust hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles V, VI and XI of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by The Bank of New York, not in its individual
capacity but solely as Trustee and in no event shall The Bank of New York have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Trust hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the Collateral of the Trust.
K-4
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
By:_______________________________________
Name:
Title:
[DESIGNATED AFFILIATE]
By:_______________________________________
Name:
Title:
DAIMLERCHRYSLER MASTER OWNER TRUST
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity, but
solely as Owner Trustee
By:_______________________________________
Name:
Title:
Acknowledged and agreed as of the day
and year first above written:
THE BANK OF NEW YORK,
not in its individual capacity, but
solely as Trustee
By:_____________________________________
Name:
Title:
K-5
Exhibit A to AAA
Form of Opinion of Counsel
--------------------------
DCWR has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware, with
full power and authority (limited liability company and other) to own its
properties and conduct its business, as presently conducted by it, and to enter
into and perform its obligations under the Assignment and Assumption Agreement.
The Designated Affiliate has been duly formed and is validly existing
as a [_______] in good standing under the laws of the State of [__________],
with full power and authority ([_______] and other) to own its properties and
conduct its business, as presently conducted by it and as proposed to be
conducted by it, and to enter into and perform its obligations under the
Assignment and Assumption Agreement and to assume and to perform the obligations
of DCWR under the Sale and Servicing Agreement, the Related Documents and the
Trust Documents.
The Designated Affiliate is duly qualified to do business and is in
good standing, and has obtained all necessary licenses and approvals, in each
jurisdiction in which the failure to qualify or to obtain such licenses or
approvals would render any Receivable unenforceable by the Designated Affiliate,
the Trust or the Trustee on behalf of any Noteholder or other Secured Party.
The Assignment and Assumption Agreement has been duly authorized,
executed and delivered by DCWR, and is a legal, valid and binding obligation of
DCWR enforceable against DCWR in accordance with its terms, except (y) the
enforceability thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect relating to
creditors' rights, and (z) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
The Assignment and Assumption Agreement has been duly authorized,
executed and delivered by the Designated Affiliate, and the Assignment and
Assumption Agreement, the Sale and Servicing Agreement, the Related Documents
and the Trust Documents are the legal, valid and binding obligations of the
Designated Affiliate. The Assignment and Assumption Agreement is enforceable
against the Designated Affiliate in accordance with its terms, except (y) the
enforceability thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect relating to
creditors' rights, and (z) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
Neither the sale, transfer, assignment and conveyance by DCWR of DCWR's
right, title and interest in the Collateral, the Seller's Interest, the DCMOT
Certificate, the Sale and Servicing Agreement, the Related Documents and the
Trust Documents or its obligations as
K-6
Seller thereunder to the Designated Affiliate, nor the consummation of any other
transaction contemplated in the Assignment and Assumption Agreement, nor the
execution and delivery of the Assignment and Assumption Agreement by DCWR, will
conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the limited liability
company agreement of DCWR or DCFS, or of any indenture or other agreement or
instrument to which DCWR or DCFS is a party or by which any of them is bound, or
result in a violation of, or contravene the terms of any statute, order or
regulation applicable to DCWR or DCFS of any court, regulatory body,
administrative agency or governmental body having jurisdiction over any of them.
Neither the execution and delivery of the Assignment and Assumption
Agreement by the Designated Affiliate, nor the assumption of the obligations of
DCWR as Seller under the Sale and Servicing Agreement, the Related Documents or
the Trust Documents, nor the consummation of any other transaction contemplated
in the Assignment and Assumption Agreement, nor the fulfillment of the terms of
the Sale and Servicing Agreement, the Related Documents or the Trust Documents
by the Designated Affiliate, will conflict with, or result in a breach,
violation or acceleration of, or constitute a default under, any term or
provision of the [constituent documents] of the Designated Affiliate, or of any
indenture or other agreement or instrument to which the Designated Affiliate is
a party or by which it is bound, or result in a violation of, or contravene the
terms of any statute, order or regulation applicable to the Designated Affiliate
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over it.
There are no actions, proceedings or investigations pending or, to the
best of such counsel's knowledge after due inquiry, threatened before any court,
administrative agency, or other tribunal (1) asserting the invalidity of the
Assignment and Assumption Agreement, (2) seeking to prevent the consummation of
any of the transactions contemplated by the Assignment and Assumption Agreement
or the execution and delivery thereof, or (3) that might materially and
adversely affect the performance by DCWR or the Designated Affiliate of its
obligations under, or the validity or enforceability of, the Assignment and
Assumption Agreement, the Sale and Servicing Agreement, the Related Documents or
the Trust Documents.
No consent, approval, authorization or order of, or notice to or filing
with, any court or governmental agency or body is required for the consummation
of the transactions contemplated in the Assignment and Assumption Agreement,
except the filing of amendments to UCC financing statements to reflect the
change of the "Seller" described in such financing statements to the Designated
Affiliate.
K-7
SCHEDULE 1
LIST OF ACCOUNTS
[Original list delivered to Trustee]
[Deemed to be incorporated]
Sch-1
APPENDIX A
ITEM 1119 PARTIES
DaimlerChrysler Master Owner Trust
DaimlerChrysler Financial Services Americas LLC
Deutsche Bank Trust Company Delaware
The Bank of New York
Appendix A-1
APPENDIX B
MINIMUM SERVICING CRITERIA TO BE ADDRESSED IN
SERVICING ASSESSMENT
The assessment of compliance to be delivered by the [Trustee]
[Servicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
- ------------------------------ -------------------------------------------------- ------------------------------------
Reg AB Reference Servicing Criteria Applicable Servicing Criteria
- ------------------------------ -------------------------------------------------- ------------------------------------
General Servicing Considerations
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to
monitor any performance or other triggers and
events of default in accordance with the
transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(1)(ii) If any material servicing activities are
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
servicing activities.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements
to maintain a back-up servicer for the Pool
Assets are maintained.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy
is in effect on the party participating in the
servicing function throughout the reporting
period in the amount of coverage required by and
otherwise in accordance with the terms of the
transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
Cash Collection and Administration
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(2)(i) Payments on pool assets are deposited into the
appropriate custodial bank accounts and related
bank clearing accounts no more than two business
days following receipt, or such other number of
days specified in the transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf
of an obligor or to an investor are made only by
authorized personnel.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding
collections, cash flows or distributions, and
any interest or other fees charged for such
advances, are made, reviewed and approved as
specified in the transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such
as cash reserve accounts or accounts established
as a form of over collateralization, are
separately maintained (e.g., with respect to
commingling of cash) as set forth in the
transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a
federally insured depository institution as set
forth in the transaction agreements. For
purposes of this criterion, "federally insured
depository institution" with respect to a
foreign financial institution means a foreign
financial institution that meets the
requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
- ------------------------------ -------------------------------------------------- ------------------------------------
Appendix B-1
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis
for all asset-backed securities related bank
accounts, including custodial accounts and
related bank clearing accounts. These
reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the
bank statement cutoff date, or such other number
of days specified in the transaction agreements;
(C) reviewed and approved by someone other than
the person who prepared the reconciliation; and
(D) contain explanations for reconciling items.
These reconciling items are resolved within 90
calendar days of their original identification,
or such other number of days specified in the
transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
Investor Remittances and Reporting
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(3)(i) Reports to investors, including those to be
filed with the Commission, are maintained in
accordance with the transaction agreements and
applicable Commission requirements.
Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set
forth in the transaction agreements; (B) provide
information calculated in accordance with the
terms specified in the transaction agreements;
(C) are filed with the Commission as required by
its rules and regulations; and (D) agree with
investors' or the trustee's records as to the
total unpaid principal balance and number of
Pool Assets serviced by the Servicer.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and
remitted in accordance with timeframes,
distribution priority and other terms set forth
in the transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted
within two business days to the Servicer's
investor records, or such other number of days
specified in the transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor
reports agree with cancelled checks, or other
form of payment, or custodial bank statements.
- ------------------------------ -------------------------------------------------- ------------------------------------
Pool Asset Administration
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(i) Collateral or security on pool assets is
maintained as required by the transaction
agreements or related pool asset documents.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(ii) Pool assets and related documents are
safeguarded as required by the transaction
agreements
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the
asset pool are made, reviewed and approved in
accordance with any conditions or requirements
in the transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(iv) Payments on pool assets, including any payoffs,
made in accordance with the related pool asset
documents are posted to the Servicer's obligor
records maintained no more than two business
days after receipt, or such other number of days
specified in the transaction agreements, and
allocated to principal, interest or other items
(e.g., escrow) in accordance with the related
pool asset documents.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(v) The Servicer's records regarding the pool assets
agree with the Servicer's records with respect
to an obligor's unpaid principal balance.
- ------------------------------ -------------------------------------------------- ------------------------------------
Appendix B-2
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of
an obligor's pool assets (e.g., loan
modifications or re-agings) are made, reviewed
and approved by authorized personnel in
accordance with the transaction agreements and
related pool asset documents.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in
lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with the
timeframes or other requirements established by
the transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a pool asset is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring
delinquent pool assets including, for example,
phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return
for pool assets with variable rates are computed
based on the related pool asset documents.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's pool
asset documents, on at least an annual basis, or
such other period specified in the transaction
agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with
applicable pool asset documents and state laws;
and (C) such funds are returned to the obligor
within 30 calendar days of full repayment of the
related pool assets, or such other number of
days specified in the transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as
tax or insurance payments) are made on or before
the related penalty or expiration dates, as
indicated on the appropriate bills or notices
for such payments, provided that such support
has been received by the servicer at least 30
calendar days prior to these dates, or such
other number of days specified in the
transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with
any payment to be made on behalf of an obligor
are paid from the Servicer's funds and not
charged to the obligor, unless the late payment
was due to the obligor's error or omission.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are
posted within two business days to the obligor's
records maintained by the servicer, or such
other number of days specified in the
transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in
accordance with the transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
1122(d)(4)(xv) Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as set
forth in the transaction agreements.
- ------------------------------ -------------------------------------------------- ------------------------------------
Appendix B-3
[THE BANK OF NEW YORK]
[DAIMLERCHRYSLER FINANCIAL SERVICES
AMERICAS LLC]
By: ____________________________________
Name:
Title:
Date: __________________________________
Appendix B-4
APPENDIX C
FORM OF PERFORMANCE CERTIFICATION
(REPORTING SUBCONTRACTOR)
Re: DaimlerChrysler Master Owner Trust
----------------------------------
The undersigned Reporting Subcontractor hereby certifies to the
[___________] and its officers, directors and Affiliates (collectively, the
"Certification Parties") as follows, with the knowledge and intent that the
Certification Parties will rely on this Certification in connection with the
certification concerning the Trust to be signed by an officer of the Servicer
and submitted to the Securities and Exchange Commission pursuant to the
Sarbanes-Oxley Act of 2002:
1. The Reporting Subcontractor has reviewed the information and reports
provided by it to the Seller and the Servicer pursuant to the Amended and
Restated Sale and Servicing Agreement dated as of November 28, 2006 (the "Sale
and Servicing Agreement") among DaimlerChrysler Wholesale Receivables LLC, as
Seller, DaimlerChrysler Financial Services Americas LLC, as Servicer, and
DaimlerChrysler Master Owner Trust, with respect to the servicing criteria
assessment under Section 11.05 of the Sale and Servicing Agreement (the
"Information");
2. Based on the Reporting Subcontractor's knowledge, the Information,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact required in the Information and necessary to make
the statements made, in the light of the circumstances under which such
statements were made, not misleading with respect to the period covered by the
10-K report; and
3. The servicing criteria assessment required to be provided by the
Reporting Subcontractor pursuant to the Sale and Servicing Agreement, has been
provided to the Seller and the Servicer. Any material instance of noncompliance
with the applicable Servicing Criteria has been disclosed in such report.
4. Any assessment of compliance with servicing criteria required to be
provided by any Reporting Subcontractor of the Indenture Trustee have been
provided by such Reporting Subcontractor.
Appendix C-1
Capitalized terms not otherwise defined herein have the meanings
ascribed thereto in the Sale and Servicing Agreement.
[REPORTING SUBCONTRACTOR]
By: ____________________________________
Name:
Title:
Date: __________________________________
Appendix C-2
APPENDIX D
FORM OF PERFORMANCE CERTIFICATION
(SERVICER)
Re: DaimlerChrysler Master Owner Trust
----------------------------------
The undersigned Servicer hereby certifies to the [___________] and its
officers, directors and Affiliates (collectively, the "Certification Parties")
as follows, with the knowledge and intent that the Certification Parties will
rely on this Certification in connection with the certification concerning the
Trust to be signed by an officer of the Servicer and submitted to the Securities
and Exchange Commission pursuant to the Sarbanes-Oxley Act of 2002:
1. I have reviewed the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122 of
Regulation AB (the "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Receivables by the Servicer during
200[_] that were delivered by the Servicer to the Indenture Trustee pursuant to
the Agreement (collectively, the "Servicer Servicing Information");
2. Based on my knowledge, the Servicer Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Servicer Servicing Information;
3. Based on my knowledge, all of the Servicer Servicing Information
required to be provided by the Servicer under the Amended and Restated Sale and
Servicing Agreement dated as of November 28, 2006 (the "Sale and Servicing
Agreement") among DaimlerChrysler Wholesale Receivables LLC, as Seller,
DaimlerChrysler Financial Services Americas LLC, as Servicer, and
DaimlerChrysler Master Owner Trust, has been provided to the Indenture Trustee;
4. I am responsible for reviewing the activities performed by the
Servicer as servicer under the Sale and Servicing Agreement, and based on my
knowledge and the compliance review conducted in preparing the Compliance
Statement and except as disclosed in the Compliance Statement, the Servicing
Assessment or the Attestation Report, the Servicer has fulfilled its obligations
under the Sale and Servicing Agreement in all material respects; and
5. The Compliance Statement required to be delivered by the Servicer
pursuant to the Sale and Servicing Agreement, and the Servicing Assessment and
Attestation Report
Appendix D-1
required to be provided by the Servicer and by any Reporting Subcontractor
pursuant to the Sale and Servicing Agreement, have been provided to the
Indenture Trustee. Any material instances of noncompliance described in such
reports have been disclosed to the Seller. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such reports.
Capitalized terms not otherwise defined herein have the meanings
ascribed thereto in the Sale and Servicing Agreement.
DAIMLERCHRYSLER FINANCIAL SERVICES
AMERICAS LLC
By: ____________________________________
Name:
Title:
Date: __________________________________
Appendix D-2