Exhibit 4.4
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DAIMLERCHRYSLER MASTER OWNER TRUST
as Issuer
and
[____________________]
as Indenture Trustee
SERIES [__________] INDENTURE SUPPLEMENT
dated as of ________ __, _____
to
INDENTURE
dated as of _______ __, 200[ ]
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Other Provisions of General Application
Section 1.01. Definitions...................................................................................1
Section 1.02. Governing Law.................................................................................7
Section 1.03. Counterparts..................................................................................8
Section 1.04. Ratification of Indenture.....................................................................8
ARTICLE II
The Notes
Section 2.01. Creation and Designation......................................................................8
Section 2.02. Form of Delivery; Depository; Denominations...................................................8
Section 2.03. Delivery and Payment..........................................................................8
ARTICLE III
Allocations, Deposits and Payments
Section 3.01. Allocations of Series [____] Available Interest Amount........................................8
Section 3.02. Amounts to be Treated as Series [____] Available Interest Amount;
Other Deposits to the Interest Funding Account................................................9
Section 3.03. Allocations of Reductions from Investor Charge-Offs to the
Overcollateralization Amount and the Nominal Liquidation
Amount of the Series [ ] Notes..............................................................10
Section 3.04. Allocations of Reimbursements of Nominal Liquidation Amount Deficit
and Overcollateralization Amount Deficit.....................................................10
Section 3.05. Application of Series [_] Available Principal Amount.........................................11
Section 3.06. Computation of Reductions to the Nominal Liquidation Amount of the
Series [ ] Notes and the Overcollateralization Amount from
Reallocations of Series [___] Available Principal Amounts....................................11
Section 3.07. Targeted Deposits of Series [_] Available Principal Amounts to the
Principal Funding Account....................................................................12
Section 3.08. Amounts to be Treated as Series [___] Available Principal Amounts;
Other Deposits to Principal Funding Account..................................................12
Section 3.09. Withdrawals from Interest Funding Account....................................................13
Section 3.10. Withdrawals from Principal Funding Account...................................................13
Section 3.11. Limit on Repayment of the Series [ ] Notes..................................................13
Section 3.12. Calculation of Nominal Liquidation Amount of Series [___] Notes and
Overcollateralization Amount.................................................................13
Section 3.13. Netting of Deposits and Payments.............................................................15
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Section 3.14. Payments to Noteholders......................................................................15
Section 3.15. Sale of Receivables for Accelerated Notes....................................................15
Section 3.16. Calculation Agent; Determination of LIBOR....................................................16
Section 3.17. Excess Available Interest Amounts Sharing....................................................17
Section 3.18. Excess Available Principal Amounts Sharing...................................................18
Section 3.19. Computation of Interest......................................................................18
Section 3.20. Variable Accumulation Period.................................................................18
ARTICLE IV
Early Redemption of Notes
Section 4.01. Early Redemption Events......................................................................19
ARTICLE V
Accounts and Investments
Section 5.01. Accounts.....................................................................................21
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EXHIBITS
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EXHIBIT A FORM OF SERIES [____] NOTE
EXHIBIT B [FORM OF] SERIES [____] SCHEDULE TO PAYMENT
INSTRUCTIONS
EXHIBIT C [FORM OF] SERIES [____] SCHEDULE TO MONTHLY
NOTEHOLDERS' STATEMENT
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This SERIES [________] INDENTURE SUPPLEMENT (this "Indenture
Supplement"), by and between DAIMLERCHRYSLER MASTER OWNER TRUST, a statutory
business trust created under the laws of the State of Delaware (the "Issuer"),
having its principal office at [_____________________________________________],
[_____________], Delaware [_____], and [_________________________________], a
[__________________] ( the "Indenture Trustee"), is made and entered into as
of ___________ ___, _____.
Pursuant to this Indenture Supplement, the Issuer shall
create a new series of Notes and shall specify the principal terms thereof.
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this
Indenture Supplement, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Indenture, the Pooling and Servicing Agreement
or the Series 2002-CC Series Supplement, either
directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance
with generally accepted accounting principles and,
except as otherwise herein expressly provided, the
term "generally accepted accounting principles"
with respect to any computation required or
permitted hereunder means such accounting
principles as are generally accepted in the United
States of America at the date of such computation;
(4) all references in this Indenture Supplement to
designated "Articles," "Sections" and other
subdivisions are to the designated Articles,
Sections and other subdivisions of this Indenture
Supplement as originally executed. The words
"herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture
Supplement as a whole and not to any particular
Article, Section or other subdivision;
(5) in the event that any term or provision contained
herein shall conflict with or be inconsistent with
any term or provision contained in the Indenture,
the terms and provisions of this Indenture
Supplement shall be controlling;
(6) each capitalized term defined herein shall relate only
to the Series [____] Notes and no other Series of
Notes issued by the Issuer; and
(7) "including" and words of similar import will be deemed
to be followed by "without limitation."
"Accumulation Period" means the period from and including
the Accumulation Period Commencement Date to but excluding the Series [ ]
Termination Date.
"Accumulation Period Commencement Date" means [____] or, if
the Issuer, acting directly or through the Administrator, makes an election
pursuant to Section 3.20, the later date selected by the Issuer pursuant to
that Section.
"Accumulation Period Length" means the number of full
Collection Periods between the Accumulation Period Commencement Date and the
Series [___] Expected Principal Payment Date.
"Aggregate Series Available Interest Amount Shortfall" means
the sum of the Series Available Interest Amount Shortfalls for all series of
Notes (as such term is defined in each of the related Indenture Supplements).
"Aggregate Series Available Principal Shortfall" means the
sum of the Series Available Principal Amount Shortfalls for all series of
Notes (as such term is defined in the related Indenture Supplements).
"applicable investment category" means the following ratings:
Series [___] Notes
Standard & Poor's AAA or A-1+
Xxxxx'x Aaa or P-1
Fitch AAA or F1+
"Calculation Agent" is defined in Section 3.16.
"Controlled Accumulation Amount" means $______; provided,
however, that if the Accumulation Period Length with respect to the Series
[____] Notes is determined to be less than [__________] months pursuant to
Section 3.20, the Controlled Accumulation Amount for any Payment Date will be
equal to (i) the Initial Dollar Principal Amount of the Series [____] Notes
divided by (ii) the Accumulation Period Length.
"Controlled Deposit Amount" means, with respect to any
Payment Date, the amount by which (i) the Controlled Accumulation Amount
exceeds (ii) any funds in the Excess Funding Account that are allocable to
Series [____] and have not been deposited into the Principal Funding Account
as of such Payment Date.
"DaimlerChrysler" means DaimlerChrysler Corporation, a
Delaware corporation, and its successors.
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"DCS" means DaimlerChrysler Services North America LLC, a
Michigan limited liability company, and its successors and permitted assigns.
"Incremental Overcollateralization Amount" means, at the
time of determination, the result obtained by multiplying
(i) a fraction, the numerator of which is the Series [____]
Nominal Liquidation Amount (calculated without including the
Incremental Overcollateralization Amount), and the denominator of
which is the Pool Balance on the last day of the preceding Collection
Period
by (ii) the excess, if any, of
(a) the sum of the Overconcentration Amount and
the aggregate amount of Ineligible
Receivables on that date
over (b) the aggregate amount of Ineligible
Receivables and Receivables in Accounts
containing Dealer Overconcentrations, in
each case that became Defaulted
Receivables during the preceding
Collection Period and are not subject to
reassignment from the CARCO Trust, unless
insolvency events relating to DCWR or the
Servicer as described in Section 9.01(b),
(c), (d) or (e) of the Pooling and
Servicing Agreement have occurred.
"Indenture" means the Indenture dated as of [______], 2002
between the Issuer and [_____], as Indenture Trustee, as amended and
supplemented from time to time.
"Initial Dollar Principal Amount" means, with respect to the
Series [___] Notes, $______.
"Initial Primary Overcollateralization Amount" means $[___],
which is the product of (i) the Overcollateralization Percentage and (ii) the
initial Nominal Liquidation Amount of the Series [___] Notes.
"Interest Funding Account" means the trust account
designated as such and established pursuant to Section 5.01(a).
"Interest Payment Date" means the ________ day of each
calendar month commencing _____ __, _____, or if such _________ day is not a
Business Day, the next succeeding Business Day.
"Interest Period" means, with respect to any Interest
Payment Date, the period from and including the previous Interest Payment Date
(or in the case of the initial Interest Payment Date, from and including the
Issuance Date) to but excluding such current Interest Payment Date.
"Investor Charge-Off" means, with respect to any Transfer
Date, the aggregate amount, if any, by which the Series [___] Investor Default
Amount, if any, for the preceding
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Monthly Period exceeds the Series [___] Available Interest Amount for such
Transfer Date available after giving effect to clauses (a), (b) and (c) of
Section 3.01.
"Investor Default Amount" is defined in the Series 2002-CC
Supplement.
"Issuance Date" means _____ __, 200[_].
"Legal Maturity Date" means _____ __, ___.
"LIBOR" means, for any Interest Period, the London interbank
offered rate determined in accordance with Section 3.16.
"LIBOR Determination Date" means, with respect to an
Interest Period, the second London Business Day prior to the commencement of
such Interest Period.
"London Business Day" means a day that is both a Business
Day and a day on which banking institutions in the City of London, England are
not required or authorized by law to be closed.
"Monthly Period" has the meaning set forth in the Indenture;
provided, however, that with respect to this Indenture Supplement, the "first
Monthly Period" means the period beginning on and including the Issuance Date
and ending on and including ______ __, 200[__].
"Nominal Liquidation Amount of the Series [___] Notes"
means, with respect to the [____ ] Notes, the amount calculated pursuant to
Section 3.12(a).
"Nominal Liquidation Amount Deficit" means, with respect to
the Series [_____ ] Notes, the excess of the Adjusted Outstanding Dollar
Principal Amount of the Series [___] Notes over the Nominal Liquidation Amount
of the Series [___] Notes.
"Overcollateralization Amount" means, with respect to the
Series [___] Notes, the amount calculated pursuant to Section 3.12(b). The
initial Overcollateralization Amount is $[___].
"Overcollateralization Amount Deficit" means, with respect
to the Series [ ] Notes, the excess of the aggregate of the reallocations and
reductions made pursuant to Section 3.12(b)(ii)(C) and (D) over the aggregate
amount of all reimbursements pursuant to Section 3.12(b)(ii)(B).
"Overcollateralization Percentage" means [___]% ; provided
that the Overcollateralization percentage shall be [ ]% so as the long-term
unsecured debt of [DaimlerChrysler AG] is less than "BBB-" by Standard &
Poor's.
"Paying Agent" means, initially, [_______________________].
"PFA Earnings" means, with respect to each Transfer Date,
the investment earnings on funds in the Principal Funding Account (net of
investment expenses and losses) for
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the period from and including the immediately preceding Transfer Date to but
excluding such Transfer Date.
"PFA Earnings Shortfall" means, for any Transfer Date, the
excess, if any, of (a) the PFA Earnings Target for such Transfer Date over (b)
the PFA Earnings for such Transfer Date.
"PFA Earnings Target" means, for any Transfer Date, with
respect to any amount on deposit in the Principal Funding Account, the Dollar
amount of interest that would have accrued on such deposit for the period from
and including the preceding Transfer Date to but excluding such Transfer Date
if it had borne interest at the related Series [___] Note Interest Rate.
"Pooling and Servicing Agreement" means the Amended and
Restated Pooling and Servicing Agreement dated as of December 5, 2001 between
DCWR, as seller, DCS, as servicer, and The Bank of New York as trustee, as
amended, restated and supplemented from time to time.
"Primary Overcollateralization Amount" means the
Overcollateralization Amount other than the portion thereof constituting the
Incremental Overcollateralization Amount.
"Principal Funding Account" means the trust account
designated as such and established pursuant to Section 5.01(a).
"Receivables Sales Proceeds" means, with respect to the
Series [____ ] Notes, the proceeds of the sale of Receivables with respect to
such class pursuant to Section 3.15. Receivables Sales Proceeds do not
constitute Available Principal Amounts.
"Receivables Sales Proceeds Deposit Amount" means, with
respect to the Series [____] Notes in respect of which the Trust has received
Receivables Sales Proceeds, the amount of Receivables Sales Proceeds on
deposit in the Principal Funding Account.
"Record Date" means, for any Payment Date, (i) if the Series
[___] Notes are Global Notes, the day preceding such Payment Date and (ii) if
the Series [___] Notes are definitive Notes, the last day of the calendar
month ending before such Payment Date.
"Redemption Period" means the period from and including the
date on which an Early Redemption Event occurs to but excluding the Series
[___] Termination Date.
"Reference Banks" means four major banks in the London
interbank market selected by the Calculation Agent.
"Required Primary Overcollateralization Amount" means, for
any Transfer Date, the product of (i) the Overcollateralization Percentage and
(ii) the Nominal Liquidation Amount of the Series [ ] Notes after giving
effect to allocations, deposits and payments to be made on such Transfer Date.
"Series [____] Account" is defined in Section 5.01(a).
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"Series [____] Available Amount" means, with respect to any
Transfer Date, the sum of the Series [___] Available Interest Amount and the
Series [___] Available Principal Amount for such Transfer Date.
"Series [____] Available Interest Amount" means, with
respect to any Transfer Date, the sum of (a) the Available Interest Amount
allocated to Series [____] pursuant to Section 501 of the Indenture, and (b)
any amounts to be treated as part of the Series [____] Available Interest
Amount pursuant to Section 3.02(a).
"Series [_____] Available Interest Amount Shortfall" means,
with respect to any Transfer Date, the excess, if any, of (a) the aggregate
amount required to be applied pursuant to Sections 3.01(a) through (e) for any
Transfer Date over (b) the Series [____] Available Interest Amount (excluding
amounts to be treated as part of the Series [____ ] Available Interest Amount
pursuant to Section 3.17(a)) for such Transfer Date; provided, however, that
the Issuer, when authorized by an Officer's Certificate, may amend or
otherwise modify this definition of Series Available Interest Amount Shortfall
provided the Note Rating Agencies confirm in writing that the amendment or
modification will not cause a Ratings Effect.
"Series [____] Available Principal Amount" means, with
respect to any Transfer Date, the sum of (a) the Available Principal Amount
allocated to Series [____] pursuant to Section 502 of the Indenture and (b)
any amounts to be treated as part of the Series [____] Available Principal
Amount pursuant to Section 3.01(d) or 3.01(e).
"Series [____] Expected Principal Payment Date" means
[_______________].
"Series [____] Floating Allocation Percentage" means, with
respect to any Transfer Date, the percentage equivalent, which shall never
exceed 100%, of a fraction, the numerator of which is the Series [____]
Nominal Liquidation Amount as of the day preceding such Transfer Date and the
denominator of which is the sum of the series nominal liquidation amounts for
all series of Notes (including Series [____]) on that day.
"Series [____] Investor Default Amount" means, with respect
to any Transfer Date, the product of the Investor Default Amount with respect
to such Transfer Date and the Series [____] Floating Allocation Percentage for
such Transfer Date.
"Series [___] Monthly Interest" is defined in Section
3.01(b).
"Series [____] Nominal Liquidation Amount" means, at the
time of determination, the amount equal to the sum of (i) the Nominal
Liquidation Amount of the Series [___] Notes at such time and (ii) the
Overcollateralization Amount at such time.
"Series [___] Note Interest Rate" means, with respect to an
Interest Period, a rate per annum equal to LIBOR, as determined by the
Calculation Agent on the related LIBOR Determination Date with respect to such
Interest Period, plus ___%.
"Series [___] Noteholder" means a Person in whose name a
Series [___] Note is registered in the Note Register or the bearer of any
Series [___] Note in Bearer Note form (including a Global Note in bearer
form), as the case may be.
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"Series [___] Notes" means any of the notes executed by the
Issuer and authenticated by or on behalf of the Indenture Trustee,
substantially in the form of Exhibit A hereto.
"Series [____] Principal Allocation Percentage" means, with
respect to any Transfer Date, the percentage equivalent, which shall never
exceed 100%, of a fraction the numerator of which is the Series [____] Nominal
Liquidation Amount as of the last day of the preceding Collection Period (or
the Collection Period preceding the commencement of the Early Redemption
Period or Accumulation Period, if applicable), and the denominator of which is
the sum of the series nominal liquidation amounts for each series of notes
(including Series [___]), provided, however, that for any series that is
amortizing or accumulating principal, the series nominal liquidation amount of
that series will be the series nominal liquidation amount as of the last day
of the Collection Period prior to the commencement of such amortization or
accumulation.
"Series [____] Servicing Fee" means, with respect to any
Transfer Date, the pro rata portion of the Certificateholders Monthly
Servicing Fee allocable to the Series [____] Notes based on the Series [____]
Floating Allocation Percentage for such Transfer Date.
"Series [_____] Termination Date" means the earliest to
occur of (a) the Principal Payment Date on which the Outstanding Dollar
Principal Amount of the Series [_____] Notes is reduced to zero, (b) the Legal
Maturity Date and (c) the date on which the Indenture is discharged and
satisfied pursuant to Article VI thereof.
"Shared Excess Available Interest Amount" means, with
respect to any Transfer Date with respect to any series of Notes, either (i)
the Series [___] Available Interest Amount for such Transfer Date available
after application in accordance with Sections 3.01(a) through (e) or (ii) the
amounts allocated to the Notes of other series that the applicable Indenture
Supplements for such series specify are to be treated as "Shared Excess
Available Interest Amount."
"Shared Excess Available Principal Amount" means, with
respect to any Transfer Date and any series of Notes, either (i) the Series
[___] Available Principal Amount for such Transfer Date available after
application in accordance with Section 3.05(c) or (ii) the amounts allocated
to the Notes of other series that the Indenture Supplements for such series
specify are to be treated as "Shared Excess Available Principal Amount."
"Telerate Page 3750" means the display page so designated on
the Dow Xxxxx Telerate Service (or such other page as may replace that page on
that service for the purpose of displaying London interbank offered rates of
major banks).
Section 1.02. Governing Law. THIS INDENTURE SUPPLEMENT WILL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY 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.
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Section 1.03. Counterparts. This Indenture Supplement may be
executed in any number of counterparts, each of which so executed will be
deemed to be an original, but all such counterparts will together constitute
but one and the same instrument.
Section 1.04. Ratification of Indenture. As supplemented by
this Indenture Supplement, the Indenture is in all respects ratified and
confirmed and the Indenture as so supplemented by this Indenture Supplement
shall be read, taken and construed as one and the same instrument.
ARTICLE II
The Notes
Section 2.01. Creation and Designation.
(a) There is hereby created a series of Notes to be issued
pursuant to the Indenture and this Indenture Supplement to be known as
"DaimlerChrysler Master Owner Trust Floating Rate Auto Loan Asset Backed
Notes, Series [___]" or the "Series _____ Notes." The Series ______ Notes will
be issued in [one] class.
(b) The Series [___ ] Notes shall not be subordinated to any
other series of Notes.
Section 2.02. Form of Delivery; Depository; Denominations.
(a) The Series [_____] Notes shall be delivered in the form
of global Registered Notes as provided in Sections 202 and 301(i) of the
Indenture, respectively.
(b) The Depository for the Series [_____] Notes shall be The
Depository Trust Company, and the Series [_____] Notes shall initially be
registered in the name of Cede & Co., its nominee.
(c) The Series [_____] Notes will be issued in minimum
denominations of $1,000 and integral multiples of that amount.
Section 2.03. Delivery and Payment. The Issuer shall execute
and deliver the Series [_____] Notes to the Indenture Trustee for
authentication, and the Indenture Trustee shall deliver the Series [_____]
Notes when authenticated, each in accordance with Section 303 of the
Indenture.
ARTICLE III
Allocations, Deposits and Payments
Section 3.01. Allocations of Series [____] Available
Interest Amount. On each Transfer Date, the Indenture Trustee will apply the
Series [____] Available Interest Amount as follows:
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(a) first, if neither DCS nor any of its Affiliates is the
Servicer, to pay the Series [___] Servicing Fee plus any previously due and
unpaid Series [___] Servicing Fee (to the extent it has not been waived by the
Servicer for such Transfer Date) to the Servicer;
(b) second, to deposit to the Interest Funding Account an
amount equal to the product of (i)(A) a fraction, the numerator of which is
[the actual number of days in the related Interest Period and the denominator
of which is 360], times (B) the Series [___] Note Interest Rate applicable to
the related Interest Period, times (ii) the Outstanding Dollar Principal
Amount of the Series [___] Notes determined as of the Record Date preceding
the related Transfer Date (the "Series [___] Monthly Interest"), plus an
amount equal to the excess, if any, of the aggregate amount accrued pursuant
to this Section 3.01(b) as of prior Interest Periods over the aggregate amount
of interest paid to the Series [ ] Noteholders pursuant to this Section
3.01(b) in respect of such prior Interest Periods;
(c) third, if DCS or any of its Affiliates is the Servicer,
to pay the Series [____] Servicing Fee plus any previously due and unpaid
Series [___] Servicing Fee (to the extent it has not been waived by the
Servicer for such Transfer Date) to the Servicer;
(d) fourth, to be treated as part of the Series [____ ]
Available Principal Amount for application in accordance with Section 3.05 in
an amount equal to the Series [____] Investor Default Amount, if any, for the
preceding Monthly Period;
(e) fifth, to be treated as part of the Series [___]
Available Principal Amount for application in accordance with Section 3.05 in
an amount equal to the sum of (x) the Nominal Liquidation Amount Deficit, if
any, and (y) the Overcollateralization Amount Deficit, if any;
(f) sixth, to be treated as Shared Excess Available Interest
Amount for application in accordance with Section 3.17; and
(g) seventh, to the Issuer.
Section 3.02. Amounts to be Treated as Series [____]
Available Interest Amount; Other Deposits to the Interest Funding Account. The
following deposits and payments will be made on the following dates:
(a) Amounts to be Treated as Series [___] Available Interest
Amount. In addition to the Available Interest Amount allocated to Series [___]
pursuant to Section 501 of the Indenture, the following amounts shall be
treated as part of the Series [___] Available Interest Amount for application
in accordance with this Article III:
(i) PFA Earnings Shortfall. The aggregate amount allocable
to Series [ ] pursuant to Section 4.01(c) of the Series 2002-CC
Supplement will be treated as part of the Series [___ ] Available
Interest Amounts for such Transfer Date.
(ii) Account Earnings. Any PFA Earnings for any Transfer
Date will be treated as part of the Series [___] Available Interest
Amount for such Transfer Date.
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(iii) Shared Excess Available Interest Amounts. Any Shared
Excess Available Interest Amounts allocable to Series [___] will be
treated as part of the Series [___] Available Interest Amounts
pursuant to Section 3.17(a).
(b) Receivables Sales Proceeds. Receivables Sales Proceeds
received by the Issuer pursuant to Section 3.15(c)(ii) for the Series [____]
Notes will be deposited into the applicable Interest Funding Account on the
date of receipt by the Issuer.
Section 3.03. Allocations of Reductions from Investor
Charge-Offs to the Overcollateralization Amount and the Nominal Liquidation
Amount of the Series [ ] Notes. On each Transfer Date when there is an
Investor Charge-Off with respect to the related Monthly Period, such Investor
Charge-Off will be allocated on that date to the Overcollateralization Amount
and the Nominal Liquidation Amount of the Series [____] Notes as set forth in
this Section.
(a) First, the amount of such Investor Charge-Off will be
allocated to the Overcollateralization Amount in an amount equal to lesser of
(i) such Investor Charge-Off and (ii) the Overcollateralization Amount
(computed prior to giving effect to such Investor Charge-Off and any
reallocation of Series [__] Available Principal Amount on such date). In such
case, the Overcollateralization Amount will be reduced by an amount equal to
the portion of such Investor Charge-Off that is allocated to the
Overcollateralization Amount pursuant to this clause (a); provided, however,
that no such allocation will reduce the Overcollateralization Amount below
zero.
(b) Second, the amount of such Investor Charge-Off remaining
after giving effect to clause (a) above will be allocated to the Series [ ]
Notes in an amount equal to the lesser of (i) the excess, if any, of the
Investor Charge-Off for such Transfer Date Period over the amount of the
reduction of the Overcollateralization Amount pursuant to clause (a) above and
(ii) the Nominal Liquidation Amount of the Series [ ] Notes (computed prior to
giving effect to any reallocations of Series [__] Available Principal Amounts
on such date). In such case, the Nominal Liquidation Amount of the Series
[___] Notes will be reduced by an amount equal to the portion of such Investor
Charge-Off that is allocated to the Series [___] Notes pursuant to this clause
(b); provided, however, that no such allocation will reduce the Nominal
Liquidation Amount of the Series [___] Notes below zero.
Section 3.04. Allocations of Reimbursements of Nominal
Liquidation Amount Deficit and Overcollateralization Amount Deficit. If, as of
any Transfer Date, there is any Series [___] Available Interest Amount
available pursuant to Section 3.01(e) to reimburse any Nominal Liquidation
Amount Deficit or Overcollateralization Amount Deficit as of such Transfer
Date, such funds will be allocated as follows:
(a) first, to the Nominal Liquidation Amount of the Series
[___] Notes, but in no event will the Nominal Liquidation Amount of the Series
[___] Notes be increased above the Adjusted Outstanding Dollar Principal
Amount of the Series [___] Notes; and
(b) second, to the Overcollateralization Amount, but in no
event will the Overcollateralization Amount be increased above the initial
Overcollateralization Amount
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calculated as if there had been no reduction of the Overcollateralization
Amount pursuant to Section 3.03 or 3.06.
Section 3.05. Application of Series [_] Available Principal
Amount. On each Transfer Date, the Indenture Trustee will apply the Series
[____] Available Principal Amount as follows:
(a) first, with respect to each Monthly Period, if after
giving effect to deposits to be made with respect to such Transfer Date
pursuant to Section 3.01(b), the Series [___] Notes have not received the full
amount targeted to be deposited pursuant to Section 3.01(b) with respect to
that Transfer Date, then the Series [___] Available Principal Amount will be
allocated to the Interest Funding Account in an amount equal to the lesser of
the following amounts:
(i) the amount of the deficiency in such targeted
amount to be deposited into the Interest Funding Account; and
(ii) the Series [ ] Nominal Liquidation Amount
(determined after giving effect to the application of the Investor
Charge-Off pursuant to Section 3.03);
(b) second, if Series [___] is in its Accumulation Period or
an Early Redemption Period, to make the targeted deposit to the Principal
Funding Account pursuant to Section 3.07; and
(c) third, if Series [ ] is not in its Accumulation Period
or an Early Redemption Period, any remaining Series [ ] Available Principal
Amount (after giving effect to clauses (a) and (b) above) will be treated as
Shared Excess Principal Amount; and
(d) fourth, to the Issuer for reinvestment in the Investor
Interest in the Collateral Certificate.
Section 3.06. Computation of Reductions to the Nominal
Liquidation Amount of the Series [ ] Notes and the Overcollateralization
Amount from Reallocations of Series [___] Available Principal Amounts.
(a) Each reallocation of a portion of the Series [____]
Available Principal Amount that is deposited to the Interest Funding Account
pursuant to Section 3.05(a) will reduce the Overcollateralization Amount;
provided, however, that such reduction shall not exceed the
Overcollateralization Amount (after giving effect to any reductions pursuant
to Section 3.03 for Investor Charge-Offs).
(b) Each reallocation of a portion of the Series [____]
Available Principal Amount that is deposited to the Interest Funding Account
pursuant to Section 3.05(a) in excess of the amounts applied pursuant to
clause (a) above that reduce the Overcollateralization Amount to zero will
reduce the Nominal Liquidation Amount of the Series [ ] Notes; provided,
however, that the amount of such reduction shall not exceed the Nominal
Liquidation Amount of the Series [ ] Notes (after giving effect to any
reductions pursuant to Section 3.03 for Investor Charge-Offs).
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Section 3.07. Targeted Deposits of Series [_] Available
Principal Amounts to the Principal Funding Account. The Series [___] Available
Principal Amount that is targeted to be deposited into the Principal Funding
Account with respect to any Transfer Date will be (i) the amount determined
pursuant to clause [(a), (b) or (c)] below for such Monthly Period, as
applicable, or if more than one such clause is applicable, the highest amount
determined pursuant to any one of such clauses, and (ii) any targeted deposit
pursuant to clause (i) for any prior Transfer Date to the extent not
previously deposited, but in no case more than the Nominal Liquidation Amount
of the Series [ ] Notes (computed immediately before giving effect to such
deposit but after giving effect to any reductions thereof due to any Investor
Charge-Offs and any reallocations of the Series [____] Available Principal
Amount on such date).
[(a)Principal Payment Date. With respect to the Transfer
Date immediately preceding each Principal Payment Date, the targeted deposit
for the Series [____] Notes is equal to the Series [___] Nominal Liquidation
Amount as of the close of business on the last day of the preceding Monthly
Period (determined after giving effect to any reductions thereof due to any
Investor Charge-Offs and any reallocations, payments or deposits of Series
[___] Available Principal Amounts on such Transfer Date).]
[(b)Budgeted Deposits. Subject to Section 3.07(c), with
respect to each Transfer Date, beginning with the Accumulation Commencement
Date, the targeted deposit to be made into the Principal Funding Account will
be the Controlled Deposit Amount for the related Payment Date.]
(c) Event of Default, Early Redemption Event, Other Optional
or Mandatory Redemption. If the Series [____] Notes have been accelerated
during a Monthly Period after the occurrence of an Event of Default, or if an
Early Redemption Event with respect to the Series [____] Notes occurs during a
Monthly Period, or with respect to the Monthly Period immediately preceding
any other date fixed for any other optional or mandatory redemption of the
Series [____] Notes, the targeted deposit for the Series [____] Notes with
respect to the next Transfer Date and each following Transfer Date is equal to
the Nominal Liquidation Amount of the Series [____] Notes as of the close of
business on the last day of the preceding Monthly Period (taking into effect
any reallocations, payments or deposits on the following Transfer Date).
Section 3.08. Amounts to be Treated as Series [___]
Available Principal Amounts; Other Deposits to Principal Funding Account. The
following deposits and payments will be made on the following dates:
(a) Amounts to be Treated as Series [___] Available
Principal Amount. In addition to the Available Principal Amount allocated to
the Series [___] pursuant to Section 502 of the Indenture, any portion of the
Series [___] Available Interest Amount that is allocated pursuant to Section
3.01(d) or 3.01(e) shall be treated as part of the Series [___] Available
Principal Amount for application in accordance with Section 3.05.
(b) Receivables Sale Proceeds. Receivables Sales Proceeds
applied pursuant to Section 3.15(c)(i) for the Series [____] Notes will be
deposited into the Principal Funding Account on the date of receipt by the
Issuer.
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Section 3.09. Withdrawals from Interest Funding Account.
Withdrawals made pursuant to this Section 3.09 with respect to the Series
[____] Notes will be made from the Interest Funding Account only after all
allocations and reallocations have been made pursuant to Sections 3.02 and
3.05. Such withdrawals will be limited to the amount then on deposit in the
Interest Funding Account.
(a) Withdrawals for Series [___] Notes. On each Interest
Payment Date, any amount on deposit in the Interest Funding Account for the
Series [___] Notes shall be paid to the Paying Agent.
(b) Payment to the Issuer. After payment in full of the
Series [____] Notes, any amount remaining on deposit in the Interest Funding
Account will be paid to the Issuer.
If the aggregate amount available for withdrawal from the
Interest Funding Account is less than all withdrawals required to be made from
the Interest Funding Account, then the aggregate amount on deposit will be
withdrawn and, if payable to more than one Person, applied pro rata based on
the respective amounts of the withdrawals required to be made.
Section 3.10. Withdrawals from Principal Funding Account.
Withdrawals made pursuant to this Section 3.10 with respect to the Series
[____] Notes will be made from the Principal Funding Account only after all
allocations and reallocations have been made pursuant to Sections 3.07 and
3.08. In no event will the amount of the withdrawal be more than the amount
then on deposit in the applicable Principal Funding Account.
(a) Withdrawals for the Series [___] Notes. On each
Principal Payment Date, any amount on deposit in the Principal Funding Account
shall be paid to the Paying Agent.
(b) Payment to the Issuer. Upon payment in full of the
Series [___] Notes, any remaining amount on deposit in the Principal Funding
Account will be paid to the Issuer.
If the aggregate amount available for withdrawal from the
Principal Funding Account is less than all withdrawals required to be made
from that Principal Funding Account, then the amounts on deposit will be
withdrawn and, if payable to more than one Person, applied pro rata based on
the amounts of the respective withdrawals required to be made.
Section 3.11. Limit on Repayment of the Series [ ] Notes. No
amounts on deposit in the Principal Funding Account will be applied to pay
principal of the Series [ ] Notes in excess of the then highest Outstanding
Dollar Principal Amount of the Series [ ] Notes.
Section 3.12. Calculation of Nominal Liquidation Amount of
Series [___] Notes and Overcollateralization Amount.
(a) On or prior to each Transfer Date the Issuer shall
calculate the Nominal Liquidation Amount of the Series [___] Notes, which
shall be the following amount:
(i) as of the Issuance Date, the Initial Dollar
Principal Amount of the Series [___] Notes; and
13
(ii) thereafter, an amount equal to, without duplication:
(A) the Nominal Liquidation Amount of the Series
[___] Notes immediately after the prior date of
determination; plus
(B) the share of all reimbursements of the Nominal
Liquidation Amount Deficit pursuant to Section 3.01(e) that
is allocated to the Series [ ] Notes pursuant to Section
3.04(a) since the prior date of determination; minus
(C) the share of all reallocations of the Series
[___] Available Principal Amount pursuant to Section 3.05(a)
that is allocated to the Series [ ] Notes pursuant to
Section 3.06(b) since the prior date of determination; minus
(D) the amount of the reduction of the Nominal
Liquidation Amount of the Series [ ] Notes resulting from an
allocation of an Investor Charge-Off pursuant to Section
3.03(b) since the prior date of determination; minus
(E) the amount deposited in the Principal Funding
Account (after giving effect to any deposits, allocations,
reallocations or withdrawals to be made on that day) since
the prior date of determination;
provided, however, that (1) the Nominal Liquidation Amount of the Series [___]
Notes may never be less than zero, (2) the Nominal Liquidation Amount of the
Series [___] Notes may never be greater than the Adjusted Outstanding Dollar
Principal Amount of the Series [___] Notes and (3) if the Series [ ] Notes has
caused a sale of Receivables pursuant to Section 3.15, then the Nominal
Liquidation Amount of Series [___] Notes the Series [ ] will be zero.
(b) On or prior to each Transfer Date the Issuer shall
calculate the Overcollateralization Amount, which shall be the following
amount:
(i) as of the date of issuance of the Series [___]
Notes, the initial Overcollateralization Amount; and
(ii) thereafter, an amount equal to, without duplication:
(A) the Primary Overcollateralization Amount of the
Series [___] Notes immediately after the prior date of
determination; plus
(B) the share of all reimbursements of the
Overcollateralization Amount Deficit pursuant to Section
3.01(e) that is allocated to the Overcollateralization
Amount pursuant to Section 3.04(b) since the prior date of
determination; minus
(C) the share of all reallocations of the Series
[___] Available Principal Amount pursuant to Section 3.05(a)
that is allocated to the Overcollateralization Amount
pursuant to Section 3.06(a) since the prior date of
determination; minus
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(D) the amount of the reduction of the
Overcollateralization Amount resulting from an allocation of
Investor Charge-Offs pursuant to Section 3.03(a) since the
prior date of determination; plus
(E) the Incremental Overcollateralization Amount;
provided, however, that the Overcollateralization Amount shall never be less
than zero.
Section 3.13. Netting of Deposits and Payments. The Issuer,
in its sole discretion, may make all deposits to the Interest Funding Account
and the Principal Funding Account pursuant to Sections 3.01 and 3.07 with
respect to any Transfer Date net of, and after giving effect to, (a) all
reallocations to be made pursuant to Section 3.07 and (b) all payments to the
Issuer pursuant to Section 3.05.
Section 3.14. Payments to Noteholders.
(a) All payments of principal, interest or other amounts to
Holders of the Series [____] Notes will be made pro rata based on the Stated
Principal Amount of their Series [____] Notes.
(b) Any installment of interest or principal, if any,
payable on any Series [____] Note which is punctually paid or duly provided
for by the Issuer and the Indenture Trustee on the applicable Interest Payment
Date or Principal Payment Date shall be paid by the Paying Agent to the Person
in whose name such Series [____] Note (or one or more Predecessor Notes) is
registered on the Record Date, by wire transfer of immediately available funds
to such Person's account as has been designated by written instructions
received by the Paying Agent from such Person not later than the close of
business on the third Business Day preceding the date of payment or, if no
such account has been so designated, by check mailed first-class, postage
prepaid to such Person's address as it appears on the Note Register on such
Record Date, except that (i) with respect to Notes registered on the Record
Date in the name of the nominee of Cede & Co., payment shall be made by wire
transfer in immediately available funds to the account designated by such
nominee and (ii) with regard to any payments of interest or principal made
pursuant to Section 3.09(b) or Section 3.10(b), respectively, payment shall be
made by wire transfer in immediately available funds to the account designated
by the Issuer.
(c) The right of the Series [____] Noteholders to receive
payments from the Issuer will terminate on the first Business Day following
the Series [____] Termination Date.
Section 3.15. Sale of Receivables for Accelerated Notes.
(a) (i) If the Series [____] Notes has been accelerated
pursuant to Section 702 of the Indenture following an Event of Default, the
Indenture Trustee may, and at the direction of the Majority Holders of the
Series [____] Notes will, cause the CARCO Trust to sell Principal Receivables
and the related Non-Principal Receivables (or interests therein) in an amount
up to the Series [___] Nominal Liquidation Amount plus any past due interest
on the Series [___] Notes.
15
(ii) Such a sale will be permitted only if at least one
of the following conditions is met:
(A) the Holders of Series [ ] Notes evidencing at
least 90% of the aggregate Outstanding Dollar Principal
Amount of the Series [____] Notes consent; or
(B) the net proceeds of such sale plus amounts in
deposit in the Principal Funding Account would be sufficient
to pay all amounts due on the Series [____] Notes; or
(C) if the Indenture Trustee determines that the
funds to be allocated to the Series [ ] Notes, including (1)
Series [ ] Available Interest Amounts and (2) amounts on
deposit on an ongoing basis to make payments on the Series [
] Notes as such payments would have become due if such
obligations had not been declared due and payable, are not
likely to be sufficient to make payments on the Series [___]
Notes when due and Holders of Series [ ] Notes evidencing at
least 66o 2/3% of the Outstanding Dollar Principal Amount of
the Series [ ] Notes consent to such sale;
(b) If the Nominal Liquidation Amount of the Series [____]
Notes is greater than zero on the Legal Maturity Date (after giving effect to
deposits and distributions otherwise to be made on the Legal Maturity Date),
the Issuer will cause the CARCO Trust to sell Principal Receivables and the
related Non-Principal Receivables on the Legal Maturity Date in an amount up
to the Series [___] Nominal Liquidation Amount plus any past due interest on
the Series [ ] Notes.
(c) Sales proceeds received with respect to the Series
[____] Notes pursuant to clause (b) will be allocated in the following
priority:
(i) first, to be deposited in the Principal Funding Account,
an amount up to the Adjusted Outstanding Dollar Principal Amount of
the Series [___] Notes immediately before giving effect to such
deposit; and
(ii) second, to be deposited in the Interest Funding Account,
the balance of such sales proceeds.
(d) Any amount remaining on deposit in the Interest Funding
Account after a sale of Receivables pursuant to this Section 3.15 after final
payment of the Series [___] Notes pursuant to Section 503 of the Indenture,
will be treated as part of the Series [____] Available Interest Amount.
Section 3.16. Calculation Agent; Determination of LIBOR.
(a) The Issuer hereby agrees that for so long as any Series
[____] Notes are Outstanding, there shall at all times be an agent appointed
to calculate LIBOR for each Interest Period (the "Calculation Agent"). The
Issuer hereby initially appoints the Indenture Trustee as the Calculation
Agent for purposes of determining LIBOR for each Interest Period. The
16
Calculation Agent may be removed by the Issuer at any time. If the Calculation
Agent is unable or unwilling to act as such or is removed by the Issuer, or if
the Calculation Agent fails to determine LIBOR for an Interest Period, the
Issuer shall promptly appoint a replacement Calculation Agent that does not
control or is not controlled by or under common control with the Issuer or its
Affiliates. The Calculation Agent may not resign its duties, and the Issuer
may not remove the Calculation Agent, without a successor having been duly
appointed.
(b) On each LIBOR Determination Date, the Calculation Agent
shall determine LIBOR to equal the offered rate for Unites States dollar
deposits for one month that appears on Telerate Page 3750 as of 11:00 AM.,
London time, on the second LIBOR Business Day prior to the Interest Period. If
that rate appears no Telerate Page 3750, LIBOR will be that rate. If on any
LIBOR Determination Date the offered rate does not appear on Telerate page
3750, the Calculation Agent will request each of the Reference Banks, to
provide the Calculation Agent with its offered quotation for United States
dollar deposits for one month to prime banks interbank market as of 11:00A.M.,
London time, on the date. If at least two Reference Banks provide Calculation
Agent with the offered quotations, LIBOR on the date will e the arithmetic
mean, rounded upwards, if necessary, to the nearest 1/100,000 of 1%
(.0000001), with five one-millionths of a percentage point rounded upward, of
all the quotations. If on the date fewer LIBOR on that date will be the
arithmetic mean, rounded upwards, if necessary, to the nearest 1/100,000 of 1%
(.0000001), with five one-millionths of a percentage point rounded upward, of
the offered per annum rtes that one or more leading banks in The City of New
York selected by the Calculation Agent are quoting as of 11:00 A.M., New York
City time, on that date to leading quoting as described above, LIBOR for that
date will be LIBOR applicable to the Interest Period.
(c) The Series [___] Note Interest Rate, applicable to the
then current and the immediately preceding Interest Periods, may be obtained
by telephoning the Indenture Trustee at its corporate trust office at (212) or
such other telephone number as shall be designated by the Indenture Trustee
for such purpose by prior written notice by the Indenture Trustee to each
Noteholder from time to time.
(d) On each LIBOR Determination Date, the Calculation Agent
shall send to the Indenture Trustee and the Beneficiary, by facsimile
transmission, notification of LIBOR for the following Interest Period.
Section 3.17. Excess Available Interest Amounts Sharing.
(a) Shared Excess Available Interest Amounts allocable to
Series [___] on any Transfer Date shall be treated as part of the Series
[____] Available Interest Amount for such Transfer Date.
(b) The Shared Excess Available Interest Amount allocable to
Series [____] with respect to any Transfer Date shall mean an amount equal to
the Series Available Interest Amounts Shortfall, if any, with respect to
Series [____] for such Transfer Date; provided, however, that if the aggregate
amount of Shared Excess Available Interest Amounts for all series of Notes for
such Transfer Date is less than the Aggregate Series Available Interest
Amounts Shortfall for such Transfer Date, then the Shared Excess Available
Interest Amount allocable to Series [____] on such Transfer Date shall equal
the product of (i) Shared Excess Available
17
Interest Amounts for all series of Notes and (ii) a fraction, the numerator of
which is the Series Available Interest Amounts Shortfall with respect to
Series [____] for such Transfer Date and the denominator of which is the
aggregate amount of Aggregate Series Available Interest Amounts Shortfall for
all series of Notes for such Transfer Date.
Section 3.18. Excess Available Principal Amounts Sharing.
(a) The Shared Excess Available Principal Amount allocable
to Series [___] on any Transfer Date shall be treated as Series [___]
Available Principal Amounts for such Transfer Date.
(b) The Shared Excess Available Principal Amount allocable
to Series [___] with respect to any Transfer Date shall mean an amount equal
to the Series Available Principal Amount Shortfall, if any, with respect to
Series [___] for such Transfer Date; provided, however, that if the aggregate
amount of Shared Excess Available Principal Amounts for all series of Notes
for such Transfer Date is less than the Aggregate Series Available Principal
Amounts Shortfall for such Transfer Date, then Shared Excess Available
Principal Amounts allocable to Series [___] on such Transfer Date shall equal
the product of (i) Shared Excess Available Principal Amounts for all series of
Notes and (ii) a fraction, the numerator of which is the Series Available
Principal Amounts Shortfall with respect to Series [___] for such Transfer
Date and the denominator of which is the aggregate amount of Aggregate Series
Available Principal Amounts Shortfall for all series of Notes for such
Transfer Date.
Section 3.19. Computation of Interest.
(a) Unless otherwise provided as contemplated in Section 301
of the Indenture, interest on the Series [ ] Notes shall be computed on the
basis of a 360-day year and the actual number of days elapsed in the related
Interest Period.
(b) Unless otherwise specified in this Indenture Supplement,
interest for any period will be calculated from and including the first day of
such period, to but excluding the last day of such period.
Section 3.20. Variable Accumulation Period.
The Issuer, acting directly or through the Administrator,
may elect, by written notice to the Indenture Trustee and the Beneficiary, to
delay, from time to time, the commencement of the Accumulation Period, and
extend the length of the Revolving Period, subject to the conditions set forth
in this Section 3.20; provided, however, that the Accumulation Period shall
commence no later than the first day of the Monthly Period related to the
Series [ ] Expected Final Payment Date. Any such election by the Issuer shall
be made not later than the first day of the last scheduled Monthly Period of
the Revolving Period (including any prior extension of the Revolving Period
pursuant to this Section 3.20).
The Issuer may make such election only if he following
conditions are satisfied:
(i) the Issuer shall have delivered to the Indenture Trustee
a certificate to the effect that the Issuer reasonably believes that
the delay in the commencement of the
18
Accumulation Period would not result in the Outstanding Dollar
Principal Amount of the Series [ ] Notes not being paid in full on
the Series [ ] Expected Principal Payment Date;
(ii) the Note Rating Agencies shall have advised the Issuer
that such election to delay the commencement of the Accumulation
Period would not cause the rating of any class of any series of Notes
then outstanding to be lowered or withdrawn; and
(iii) the amount to be deposited in the Principal Funding
Account in respect of Controlled Accumulation Amount shall have been
adjusted.
Notwithstanding anything herein or in the Indenture to the contrary, the
Administrator may, on behalf of the Issuer, (i) perform all such calculations
as are necessary to determine whether the Accumulation Period may be delayed
pursuant to this Section 3.20 and (ii) elect to delay the Accumulation Period
pursuant to this Section 3.20.
ARTICLE IV
Early Redemption of Notes
Section 4.01. Early Redemption Events. In addition to the
events identified as Early Redemption Events in Section 1201 of the Indenture,
each of the following events will also be an Early Redemption Event with
respect to the Series [____] Notes:
(1) failure on the part of DCWR, the Servicer or DCS (if DCS is no longer
the Servicer), as applicable,
(a) to make any payment or deposit required by the Pooling and
Servicing Agreement or the Receivables Purchase Agreement,
including but not limited to any Transfer Deposit Amount or
Adjustment Payment, on or before the date occurring two
Business Days after the date that payment or deposit is
required to be made; or
(b) to deliver a Distribution Date Statement on the date
required under the Pooling and Servicing Agreement, or
within the applicable grace period which will not exceed
five business days; or
(c) to comply with its covenant in the Pooling and Servicing
Agreement not to create any lien on a Receivable; or
(d) to observe or perform in any material respect any other
covenants or agreements set forth in the Pooling and
Servicing Agreement or the Receivables Purchase Agreement,
which failure continues unremedied for a period of 45 days
after written notice of that failure in accordance with the
Pooling and Servicing Agreement;
(2) any representation or warranty made by DCS, as seller, in the
Receivables Purchase Agreement or by DCWR in the Pooling and
Servicing Agreement or any information required to be given by DCWR
to the Trustee to identify the Accounts proves to have been incorrect
in any material respect when made and continues to be incorrect in
any
19
material respect for a period of 60 days after written notice and
as a result the interests of the Certificateholders are materially
and adversely affected. An Early Redemption Event, however, shall not
be deemed to occur if DCWR has repurchased the related Receivables or
all of the Receivables, if applicable, during that period in
accordance with the provisions of the Pooling and Servicing
Agreement;
(3) the occurrence of any event specified in the Section 9.01(c), (d) or
(e) of the Pooling and Servicing Agreement relating to DCS or
DaimlerChrysler;
(4) a failure by DCWR to convey Receivables in Additional Accounts to the
CARCO Trust within five Business Days after the day on which it is
required to convey those Receivables under the Pooling and Servicing
Agreement;
(5) on any Transfer Date, the [Primary] Overcollateralization Amount for
the next Payment Date will be reduced to an amount less than the
Required Primary Overcollateralization Amount on that Transfer Date
after giving effect to the distributions to be made on the next
Payment Date; provided that, for the purpose of determining whether
an Early Redemption Event has occurred pursuant to this clause (5),
any reduction of the Primary Overcollateralization Amount resulting
from reallocations of the Series [ ] Available Principal Amounts to
pay interest on the Series [ ] Notes in the event LIBOR is equal to
or greater than the prime rate upon which interest on the Receivables
is calculated on the applicable LIBOR Determination Date will be
considered an Early Redemption Event only if LIBOR remains equal to
or greater than such prime rate for the next 30 consecutive days
following such LIBOR Determination Date ;
(6) any Service Default occurs;
(7) on any Determination Date, as of the last day of the preceding
Collection Period, the aggregate amount of Principal Receivables
relating to Used Vehicles exceeds 20% of the Pool Balance on that
last day;
(8) on any Determination Date, the average of the Monthly Payment Rates
for the three preceding Collection Periods is less than 20%;
(9) the Outstanding Dollar Principal Amount of the Series [___] Notes is
not repaid by the Series [___] Expected Principal Payment Date;
(10) the Issuer becomes an investment company within the meaning of the
Investment Company Act of 1940; and
(11) the occurrence of an Event of Default with respect of the Series [ ]
Notes.
In the case of any event described in clause (1), (2) or (6)
above, an Early Redemption Event with respect to Series [ ] will be deemed to
have occurred only if, after the applicable grace period described in such
clause, if any, either the Indenture Trustee or Series [ ] Noteholders holding
Series [ ] Notes evidencing more than 50% of the Outstanding Dollar Principal
Amount of the Series [ ] Notes by written notice to the Seller, the Servicer,
the Trustee and the Indenture Trustee, if given by Series [ ] Noteholders,
declare that an Early Redemption
20
Event has occurred as of the date of that notice. In the case of any Early
Redemption Event described in the prospectus or any event described in clause
(3), (4), (5), (7), (8), (9), (10) or (11) above, an Early Redemption Event
with respect to Series [ ] will be deemed to have occurred without any notice
or other action on the part of the Trustee or the Series [ ] Noteholders
immediately upon the occurrence of that event.
ARTICLE V
Accounts and Investments
Section 5.01. Accounts.
(a) Accounts; Deposits to and Distributions from Accounts.
On or before the Issuance Date, the Indenture Trustee will cause to be
established and maintained two Qualified Accounts denominated as follows: the
"Interest Funding Account" and the "Principal Funding Account" (collectively,
the "Series [_] Accounts") in the name of the Indenture Trustee, bearing a
designation clearly indicating that the funds deposited therein are held for
the benefit of the Series [____] Noteholders. The Series [____] Accounts
constitute Supplemental Accounts and shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the Series [____]
Noteholders. If, at any time, the institution holding any Series [____ ]
Account ceases to be a Qualified Institution, the Issuer will within ten (10)
Business Days (or such longer period, not to exceed thirty (30) calendar days,
as to which each Note Rating Agency may consent) establish a new applicable
Series [____] Account, that is a Qualified Account and shall transfer any cash
and/or investments to such new Series [____] Account. From the date such new
Series [____] Account is established, it will be a Series [_____ ] Account,
bearing the name of the Series [____] Account it has replaced.
(b) All payments to be made from time to time by the
Indenture Trustee to Series [____] Noteholders out of funds in the Series
[____ ] Accounts pursuant to this Indenture Supplement will be made by the
Indenture Trustee to the Paying Agent not later than 12:00 noon on the
applicable Interest Payment Date or Principal Payment Date but only to the
extent of funds in the applicable Account or as otherwise provided in Article
III.
21
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture Supplement to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
DAIMLERCHRYSLER MASTER OWNER TRUST,
By: DaimlerChrysler Wholesale Receivables LLC,
as Beneficiary and not in its individual capacity
By:_______________________________________________
Name:
Title:
Attest:
[______________________], as Indenture Trustee
and not in its individual capacity
By:_______________________________________________
Name:
Title:
Attest:
22
INDENTURE SUPPLEMENT
EXHIBIT A
---------
[FORM OF] SERIES [___] NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS
AND AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE ISSUER,
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC OR THE CARCO MASTER AUTO LOAN TRUST,
OR JOIN IN ANY INSTITUTION AGAINST THE ISSUER, DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC OR THE CARCO MASTER AUTO LOAN TRUST, OF, ANY BANKRUPTCY
PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW
IN CONNECTION WITH ANY OBLIGATIONS RELATING TO THE NOTES OR THE INDENTURE.
THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND
EACH HOLDER OF A BENEFICIAL INTEREST IN THIS NOTE, BY THE ACQUISITION OF A
BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE NOTES AS INDEBTEDNESS OF
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC FOR APPLICABLE FEDERAL, STATE, AND
LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED
ON OR MEASURED BY INCOME.
A-1
REGISTERED $_________
No. __ CUSIP NO. __________
DAIMLERCHRYSLER MASTER OWNER TRUST
FLOATING RATE AUTO LOAN ASSET BACKED NOTES, SERIES [___]
DaimlerChrysler Master Owner Trust, a statutory business
trust created under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, subject to the following provisions, a principal sum of
_______________________ payable on the __________ ____ Payment Date (the
"Expected Principal Payment Date"), except as otherwise provided below or in
the Indenture; provided, however, that the entire unpaid principal amount of
this Note shall be due and payable on the _________ ____ Payment Date (the
"Legal Maturity Date"). Interest will accrue on this Note from each Interest
Payment Date (or, in the case of the first Interest Payment Date, from the
date of issuance of this Note) to but excluding the following Interest Payment
Date. Interest will be computed on the basis of a 360-day year and the actual
number of days elapsed. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All payments
made by the Issuer with respect to this Note shall be applied first to
interest due and payable on this Note as provided above and then to the unpaid
principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
DAIMLERCHRYSLER MASTER OWNER TRUST,
as Issuer
By: DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC, not in its individual capacity
but solely as Beneficiary under the Trust Agreement
By:______________________________
Name:
Title:
Date: _______ __, 200[ ]
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INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
[______________________], not in its individual
capacity but solely as Indenture Trustee
By:__________________________________
Name:
Title:
Date: ____________ __, 200[ ]
A-4
[REVERSE OF NOTE]
This Series [___] Note is one of the Notes of a duly
authorized issue of Notes of the Issuer, designated as its Floating Rate Auto
Loan Asset Backed Notes, Series [ ] (herein called the "Notes"), all issued
under an Indenture dated as of ________ __, 2002 (such indenture, as
supplemented or amended, is herein called the "Indenture"), as supplemented by
an Indenture Supplement dated as of ______ __, 200[ ] (the "Indenture
Supplement"), between the Issuer and [_________________], as indenture trustee
(the "Indenture Trustee", which term includes any successor Indenture Trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture and the
Indenture Supplement. All terms used in this Note that are defined in the
Indenture or the Indenture Supplement, each as supplemented or amended, shall
have the meanings assigned to them in or pursuant to the Indenture or the
Indenture Supplement, as so supplemented or amended.
The Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture.
Principal of the Notes will be payable on the Expected
Principal Payment Date in an amount described on the face hereof.
As described above, the entire unpaid principal amount of
this Note shall be due and payable on the Legal Maturity Date. Notwithstanding
the foregoing, the entire unpaid principal amount of the Notes may be due and
payable following an Event of Default in the manner provided in Section 702 of
the Indenture; provided, however, that such acceleration of the entire unpaid
principal amount of the Notes may be rescinded by the holders of not less than
a majority of the Outstanding Dollar Principal Amount of the Notes. All
principal payments on the Notes shall be made pro rata to the Noteholders
entitled thereto.
On any day occurring on or after the date on which the
aggregate Nominal Liquidation Amount of the Series [____] Notes is reduced to
less than [ ]% of its Initial Dollar Principal Amount, the Servicer has the
right, but not the obligation, to redeem the Series [___] Notes in whole but
not in part, pursuant to Section 1202 of the Indenture equal the Outstanding
Dollar Principal Amount of the Series [___] Notes, plus interest accrued and
unpaid to but excluding the date of redemption.
Subject to the terms and conditions of the Indenture, the
Seller may, from time to time, direct the Owner Trustee, on behalf of the
Issuer, to issue one or more series or classes of Notes.
On each Payment Date, the Paying Agent shall distribute to
each Series [___] Noteholder of record on the related Record Date (except for
the final distribution with respect to this Note) such Series [___]
Noteholder's pro rata share of the amounts held by the Paying Agent that are
allocated and available on such Payment Date to pay interest and principal on
the Series [___] Notes. Final payments of this Note will be made only upon
presentation and surrender of this Note at the office or offices therein
specified.
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Payments of interest on this Note due and payable on each
Payment Date, together with the installment of principal, if any, to the
extent not in full payment of this Note, shall be made by check mailed to the
Person whose name appears as the Registered Holder of this Note (or one or
more Predecessor Notes) on the Note Register as of the close of business on
each Record Date, except that with respect to Notes registered on the Record
Date in the name of the nominee of the clearing agency (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Payment Date shall be binding upon
all future Holders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof, whether or not
noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount
of this Note on a Payment Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Payment Date by notice mailed
within five days of such Payment Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in the City of
New York.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
his attorney duly authorized in writing, with such signature guaranteed by a
commercial bank or trust company located, or having a correspondent located,
in the City of New York or the city in which the Corporate Trust Office is
located, or a member firm of a national securities exchange, and such other
documents as the Indenture Trustee may require, and thereupon one or more new
Notes of authorized denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service charge
will be charged for any registration of transfer or exchange of this Note, but
the transferor may be required to pay a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee or the Owner
Trustee in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed and except that any
A-6
such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that by accepting the benefits of the Indenture that such Noteholder
that it will not at any time institute against DaimlerChrysler Wholesale
Receivables LLC, the CARCO Trust or the Issuer, or join in any institution
against DaimlerChrysler Wholesale Receivables LLC, the CARCO Trust or the
Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, the Indenture or any Derivative Agreement.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note is overdue, and neither the Issuer, the Indenture Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes
representing not less than a majority of the Outstanding Dollar Principal
Amount of all Notes at the time Outstanding. The Indenture also contains
provisions permitting the Holders of Notes representing specified percentages
of the Outstanding Dollar Principal Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of
the Notes issued thereunder.
The term "Issuer" as used in this Note includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
A-7
THIS NOTE AND THE INDENTURE WILL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY 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.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place, and rate, and in the coin or
currency herein prescribed.
No recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer on the Notes or under the Indenture
or any certificate or other writing delivered in connection herewith or
therewith, against (i) the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Owner Trustee
in its individual capacity, any holder of a beneficial interest in the Issuer
or the Owner Trustee or of any successor or assign of the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Owner Trustee has no such obligations in its
individual capacity). The Holder of this Note by the acceptance hereof agrees
that, except as expressly provided in the Indenture and the Indenture
Supplement in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
A-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: ________________________ _____________________________________ *
Signature Guaranteed:
____________________
* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-9
