Exhibit 4.1
EXECUTION COPY
FIRST AMENDMENT dated as of November 14, 2003 (this
"Amendment"), to the Amended and Restated Pooling and Servicing
Agreement dated as of December 5, 2001 (the "Pooling and Servicing
Agreement"), among DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC, a
Delaware limited liability company, as Seller (as transferee from
U.S. Auto Receivables Company, which itself was the transferee from
Chrysler Auto Receivables Company), DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC, a Michigan limited liability company, as Servicer (as
successor to Chrysler Financial Company, L.L.C., which itself was
the successor to Chrysler Financial Corporation, which itself was
the successor to Chrysler Credit Corporation), and THE BANK OF NEW
YORK, a New York banking corporation, as Trustee (as successor
Trustee to Manufacturers and Traders Trust Company).
W I T N E S S E T H :
WHEREAS the Seller, the Servicer and the Trustee have entered into
the Pooling and Servicing Agreement.
WHEREAS the Seller and the Servicer wish to amend the Pooling and
Servicing Agreement to provide for: (i) the inclusion of security interests in
chattel paper, instruments and franchise rights as additional types of
Collateral Security; (ii) the clarification that the Receivables are tangible
chattel paper, accounts or payment intangibles under the UCC; (iii) the
existence of subordinated Liens in certain Collateral Security as permitted
under the Receivables Purchase Agreement; (iv) the replacement of Exhibits B,
G-2 and K to the Pooling and Servicing Agreement with new exhibits that
conform with the modifications described in clauses (ii) and (iii) above, as
applicable; and (v) the replacement of Exhibit I to the Pooling and Servicing
Agreement with the Amended and Restated Receivables Purchase Agreement that is
being executed by the Seller and DaimlerChrysler Services North America LLC
concurrently with this Amendment.
WHEREAS the Seller and the Servicer wish to effect this amendment in
accordance with Section 13.01(a) of the Pooling and Servicing Agreement.
WHEREAS the Seller and the Servicer have directed the Trustee to
execute this Amendment and have caused the Opinion of Counsel required by
Section 13.01(a) of the Pooling and Servicing Agreement to be delivered to the
Trustee.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereby agree as follows:
1. Definitions. For purposes of this Amendment, capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
thereto in the Pooling and Servicing Agreement.
2. Amendments to Section 1.01 of the Pooling and Servicing
Agreement. Section 1.01 of the Pooling and Servicing Agreement is hereby
amended as follows:
(a) The definition of "Collateral Security" is hereby amended
and restated in its entirety to read as follows:
""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."
(b) Clause (o) of the definition of "Eligible Receivable" is
hereby amended and restated in its entirety to read as follows:
"(o) 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"
3. Amendment to Section 2.01 of the Pooling and Servicing Agreement.
The second paragraph of Section 2.01 of the Pooling and Servicing Agreement is
hereby amended and restated in its entirety as follows:
"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 first Closing Date, in the case of the Initial
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."
4. Amendment to Section 2.03(j) of the Pooling and Servicing
Agreement. Section 2.03(j) of the Pooling and Servicing Agreement is hereby
amended and restated in its entirety as follows:
"(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
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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, neither the Seller nor any
Person claiming through or under the Seller has any claim to or
interest in the Trust Assets."
5. Amendment to Section 2.04(a) of the Pooling and Servicing
Agreement. Clause (i) of Section 2.04(a) of the Pooling and Servicing
Agreement is hereby amended and restated in its entirety as follows:
"(i) Each Receivable and all Collateral Security existing
on the first Closing Date or, in the case of Additional Accounts, on
the applicable Addition Date, and on each Transfer Date, has been
conveyed to the 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."
6. Amendment to Section 2.06(a) of the Pooling and Servicing
Agreement. Section 2.06(a) of the Pooling and Servicing Agreement is hereby
amended and restated in its entirety as follows:
"(a) No Liens. Except for the conveyances hereunder or as
provided in Section 6.03(c), 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) 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."
7. Amendment of Exhibit B to the Pooling and Servicing Agreement.
The Form of Assignment of Receivables in Additional Accounts attached as
Exhibit B to the Pooling
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and Servicing Agreement is hereby deleted in its entirety and replaced by the
amended and restated Exhibit B attached to this Amendment.
8. Amendment of Exhibit G-2 to the Pooling and Servicing Agreement.
The Form of Opinion of Counsel with respect to Accounts attached as Exhibit
G-2 to the Pooling and Servicing Agreement is hereby deleted in its entirety
and replaced by the amended and restated Exhibit G-2 attached to this
Amendment.
9. Amendment of Exhibit I to the Pooling and Servicing Agreement.
The Form of Receivables Purchase Agreement attached as Exhibit I to the
Pooling and Servicing Agreement is hereby deleted in its entirety and replaced
by the Amended and Restated Receivables Purchase Agreement dated as of
November 14, 2003, between DCWR, as buyer, and DCS, as seller.
10. Amendment of Exhibit K to the Pooling and Servicing Agreement.
The Form of Assignment and Assumption Agreement attached as Exhibit K to the
Pooling and Servicing Agreement is hereby deleted in its entirety and replaced
by the amended and restated Exhibit K attached to this Amendment.
11. Ratification. Upon execution of this Amendment, the Pooling and
Servicing Agreement shall be amended in accordance herewith and the respective
rights, limitations, obligations, duties, liabilities and immunities of the
Seller, the Servicer, the Trustee and the Certificateholders shall hereafter
be determined, exercised and enforced subject in all respects to such
amendments, and the terms of this Amendment shall be a part of the Pooling and
Servicing Agreement for any and all purposes.
12. Successors and Assigns. This Amendment will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
permitted assigns.
13. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Severability. Any covenant, provision, agreement or term of this
Amendment that is prohibited or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof.
15. Headings. The headings in this Amendment are for the purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
16. Counterparts. This Amendment may be executed in multiple
counterparts, all of which shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to the Pooling and Servicing Agreement to be duly executed by their
respective officers as of the day and year first above written.
DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC,
as Seller
By: /s/ ▇.▇. ▇▇▇▇▇
----------------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Assistant Controller
DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC,
as Servicer
By: /s/ ▇.▇. ▇▇▇▇▇
----------------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Assistant Controller
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
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EXHIBIT B
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.05
of the Amended and Restated Pooling and Servicing Agreement)
ASSIGNMENT No. OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
, , among DaimlerChrysler Wholesale Receivables LLC, as seller
(the "Seller"), DaimlerChrysler Services North America LLC, as servicer (the
"Servicer"), and The Bank of New York, as trustee (the "Trustee"), pursuant to
the Amended and Restated Pooling and Servicing Agreement referred to below.
W I T N E S S E T H :
WHEREAS the Seller, the Servicer and the Trustee are parties to an
Amended and Restated Pooling and Servicing Agreement dated as of December 5,
2001 (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 as part of the corpus of the Trust
(as each such term is defined in the Agreement); and
WHEREAS the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller, the Servicer and the Trustee 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, , .
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 Additional Accounts specifying for each such
Account, as of the Additional Cut-Off Date, its account number, the aggregate
amount of Receivables outstanding in such Account and the aggregate amount of
Principal Receivables in such Account. Such file or list shall, as of the date
of this Assignment, supplement Schedule 1 to the Agreement.
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 for the benefit of the
Certificateholders and the other Beneficiaries, all
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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 "proceeds" as defined in Section 9-315 of
the UCC as in effect in the State of Michigan and Recoveries) thereof. The
foregoing sale, transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in the creation or an assumption by
the Trust, the Trustee, any Agent or any Beneficiary of any obligation of the
Servicer, the Seller, DCS, DaimlerChrysler or any other Person in connection
with the Accounts, the Receivables or under any agreement or instrument
relating thereto, including any obligation to any Dealers.
(b) In connection with such sale, the Seller agrees to record and
file, at its own expense, a financing statement on form UCC-1 (and
continuation statements when applicable) with respect to the Receivables now
existing and hereafter created for the sale of "tangible chattel paper",
"accounts" or "payment intangibles" (each as defined in Section 9-102 of the
UCC as in effect in the relevant jurisdiction) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables and the Collateral
Security to the Trust, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing to the Trustee on or prior to the
Addition Date. The Trustee shall be under no obligation whatsoever to file
such financing statement, or a continuation statement to such financing
statement, or to make any other filing under the UCC in connection with such
sales.
(c) In connection with such sale, the Seller further agrees, at its
own expense, on or prior to the Addition Date, to indicate in its computer
files that the Receivables created in connection with the Additional Accounts
designated hereby have been sold and the Collateral Security assigned to the
Trust pursuant to this Assignment for the benefit of the Certificateholders
and the other Beneficiaries.
4. Acceptance by Trustee. Subject to the satisfaction of the
conditions set forth in Section 6 of this Assignment, the Trustee hereby
acknowledges its acceptance, on behalf of the Trust, 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, and declares that it shall maintain such right, title and
interest, upon the trust set forth in the Agreement for the benefit of the
Certificateholders and other Beneficiaries. The Trustee further acknowledges
that, prior to or simultaneously with the execution and delivery of this
Assignment, the Seller delivered to 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 Trustee, on behalf of 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
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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 Beneficiaries were utilized
in selecting the Additional Accounts designated hereby;
(d) Insolvency. As of the Notice Date and the Addition Date, neither
CFC, CCC nor the Seller are insolvent nor, after giving effect to the
conveyance set forth in Section 3 of this Assignment, will any of them
have been made insolvent, nor are any of them 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 Agreement, neither the Seller nor any Person
claiming through or under the Seller has any claim to or interest in the
Trust Assets;
(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,
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(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;
(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
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 4 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
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.
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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, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee have
caused this Assignment to be duly executed and delivered by their respective
duly authorized officers as of the day and the year first above written.
DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC, as Seller,
By:________________________________
Name:
Title:
DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC, as Servicer,
By:________________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee,
By:_________________________________
Name:
Title:
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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 Pooling and Servicing
Agreement, dated as of December 5, 2001 (as amended and supplemented, the
"Agreement"), among the Seller, as seller, DaimlerChrysler Services North
America LLC, as servicer, and The Bank of New York, as trustee.
[(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 the Seller 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
Amended and Restated Pooling 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 CARCO 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
Amended and Restated Pooling and Servicing Agreement and receipt by the
Seller of the consideration therefor required pursuant to the Amended and
Restated Pooling 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
--------
* 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
Trust free and clear of any liens but subject to the rights of the Seller
as holder of the CARCO Certificate;
and, in either case, no further action will thereafter be required under
Michigan 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 Amended and Restated Pooling and Servicing Agreement
does not constitute a true sale of the Receivables and the Collateral Security
to the Trust, then the Amended and Restated Pooling and Servicing Agreement as
amended and supplemented by the Assignment creates a valid security interest
in favor of the Trustee, for the benefit of the Certificateholders, 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.
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EXHIBIT K
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement")
dated as of ____________, ______________ (the "Assumption
Date"), by and among DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC,
a Delaware limited liability company headquartered in
Southfield, Michigan ("DCWR"), [____________________] (the
"Designated Affiliate"), a Delaware corporation headquartered
in [________________], and THE BANK OF NEW YORK, a New York
banking corporation (the "Trustee"), pursuant to the Amended
and Restated Pooling and Servicing Agreement referred to below.
WHEREAS DCWR, the Trustee and DaimlerChrysler Services North America
LLC, as servicer (the "Servicer"), are parties to the Amended and Restated
Pooling and Servicing Agreement dated as of December 5, 2001 (as amended or
supplemented, the "Amended and Restated Pooling 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 Trust
Assets, the Seller's Interest, the CARCO Certificate, the Amended and Restated
Pooling and Servicing Agreement, the Related Documents and any other
agreement, document or instrument relating to the Amended and Restated Pooling
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 Amended and Restated Pooling and Servicing Agreement;
WHEREAS the Designated Affiliate agrees to assume the performance of
every covenant and obligation of DCWR under the Amended and Restated Pooling
and Servicing Agreement, the Related Documents and the Trust Documents; and
WHEREAS the Trustee is willing to accept an assignment to and
assumption by the Designated Affiliate, subject to the terms and conditions
hereof and of the Amended and Restated Pooling and Servicing Agreement;
NOW, THEREFORE, DCWR, the Designated Affiliate and the Trustee
hereby agree as follows:
1. Defined Terms. All terms defined in the Amended and Restated
Pooling 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 Trust Assets, the Seller's Interest, the
CARCO Certificate, the Amended and Restated Pooling
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and Servicing 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 DCS to indicate in their computer files that the Receivables
created in connection with the Accounts (other than Removed Accounts) have
been sold, and the Collateral Security assigned, to the Designated Affiliate
in accordance with the Receivables Purchase Agreement and sold to the Trust
pursuant to the Amended and Restated Pooling and Servicing Agreement for the
benefit of the Certificateholders and the other Beneficiaries.
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 Amended and
Restated Pooling 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 Amended and
Restated Pooling 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 Trust Assets as defined in Section
2.01 of the Amended and Restated Pooling and Servicing Agreement 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
Trust Assets 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 Trustee. The Trustee hereby acknowledges its
acceptance on behalf of the Trust 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
Trustee or any Beneficiary of any obligation of the Servicer, DCS, the Seller,
DaimlerChrysler, the Designated Affiliate of any other Person in connection
with the Accounts, the Receivables or under any agreement or instrument
relating thereto, including any obligation to any Dealers.
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
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the Amended and Restated Pooling 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) Ownership Interest. The ownership interest of the Trustee in the
Receivables and other Trust Assets continues to remain in full force and
effect and has not been interrupted or impaired by the signing of this
Agreement and such ownership interest remains prior to all others except as
set forth in the Amended and Restated Pooling and Servicing Agreement.
7. Conditions Precedent. The acceptance of the Trustee 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 Amended and
Restated Pooling and Servicing Agreement and of the following additional
conditions precedent:
(a) DCWR shall have transferred the CARCO Certificate to the
Designated Affiliate as set forth in Section 7.04(c) of the Amended and
Restated Pooling and Servicing Agreement.
(b) The payment of any other consideration has been completed as
certified by the Designated Affiliate to the Trustee.
(c) The Designated Affiliate shall have delivered to 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 Amended and Restated Pooling and Servicing Agreement are
true and correct.
(d) DCWR shall have delivered to the Trustee an Opinion of Counsel
dated the Assumption Date in the form attached hereto as Exhibit A.
8. Amended and Restated Pooling and Servicing Agreement. The
Designated Affiliate, DCWR and the Trustee hereby agree that from and after
the Assumption Date the terms "Seller" and "DCWR" (other than "CARCO
Certificate") in the Amended and Restated Pooling 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 Amended and Restated
Pooling 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 of this Agreement by the
Trustee shall not constitute or be deemed to constitute a waiver
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of compliance with or a consent to non-compliance with any term or provision
of the Amended and Restated Pooling 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, 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.
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:
K-4
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 CARCO under the Amended and Restated Pooling 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 or the Trustee on behalf of any Certificateholder.
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 Amended and Restated Pooling 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 Trust Assets, the Seller's Interest,
the CARCO Certificate, the Amended and Restated Pooling and Servicing
Agreement, the Related Documents and the Trust Documents or its obligations as
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
K-5
Agreement by DCWR, will conflict with, or result in a breach, violation or
acceleration of, or constitute a default under, any term or provision of the
limited liability company agreement of DCWR or DCS, or of any indenture or
other agreement or instrument to which DCWR or DCS is a party or by which any
of them is bound, or result in a violation of, or contravene the terms of any
statute, order or regulation applicable to DCWR or DCS of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over any of them.
Neither the execution and delivery of the Assignment and Assumption
Agreement by the Designated Affiliate, nor the assumption of the obligations
of DCWR as Seller under the Amended and Restated Pooling and Servicing
Agreement, the Related Documents or the Trust Documents, nor the consummation
of any other transaction contemplated in the Assignment and Assumption
Agreement, nor the fulfillment of the terms of the Amended and Restated
Pooling and Servicing Agreement, the Related Documents or the Trust Documents
by the Designated Affiliate, will conflict with, or result in a breach,
violation or acceleration of, or constitute a default under, any term or
provision of the [constituent documents] of the Designated Affiliate, or of
any indenture or other agreement or instrument to which the Designated
Affiliate is a party or by which it is bound, or result in a violation of, or
contravene the terms of any statute, order or regulation applicable to the
Designated Affiliate of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it.
There are no actions, proceedings or investigations pending or, to
the best of such counsel's knowledge after due inquiry, threatened before any
court, administrative agency, or other tribunal (1) asserting the invalidity
of the Assignment and Assumption Agreement, (2) seeking to prevent the
consummation of any of the transactions contemplated by the Assignment and
Assumption Agreement or the execution and delivery thereof, or (3) that might
materially and adversely affect the performance by DCWR or the Designated
Affiliate of its obligations under, or the validity or enforceability of, the
Assignment and Assumption Agreement, the Amended and Restated Pooling and
Servicing Agreement, the Related Documents or the Trust Documents.
No consent, approval, authorization or order of, or notice to or
filing with, any court or governmental agency or body is required for the
consummation of the transactions contemplated in the Assignment and Assumption
Agreement, except the filing of amendments to UCC financing statements to
reflect the change of the "Seller" described in such financing statements to
the Designated Affiliate.
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