EXHIBIT 99.3
[FORM OF PURCHASE AGREEMENT]
This PURCHASE AGREEMENT dated as of ___________, 200__, between
DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS LLC, a Michigan limited liability
company (the "Seller"), and DAIMLERCHRYSLER RETAIL RECEIVABLES LLC, a Michigan
limited liability company (the "Company").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS the Seller and the Company have entered into an Amended and
Restated Trust Agreement dated as of ___________, 200__, among the Seller, the
Company and [__________________], as owner trustee (as amended and supplemented
from time to time, the "Trust Agreement"), pursuant to which the Company has
agreed to assume certain obligations with respect to DaimlerChrysler Auto Trust
200__-__ a Delaware statutory trust (the "Issuer"); and
WHEREAS the Company has agreed to acquire all of the Certificates, which
represent undivided percentage interests in the assets of the Issuer;
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein, the parties
hereto agree as follows.
ARTICLE I
Definitions
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Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Sale and Servicing Agreement dated as of
___________, 200__ (the "Sale and Servicing Agreement"), between the Issuer and
DaimlerChrysler Financial Services Americas LLC, as seller and as servicer, or,
if not defined therein, in the Trust Agreement.
ARTICLE II
Conveyance of Rights to Excess Cash Flow from Reserve Account
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Section 2.01. Conveyance of Rights. In consideration of the Company's
delivery to or upon the order of the Seller of approximately $[___________] on
the Closing Date, (i) the Seller does hereby sell, transfer, assign, set over
and otherwise convey to the Company, without recourse (subject to the
obligations herein), all of the Seller's right, title and interest in and to the
following: (a) any amounts to be released from the Reserve Account from time to
time to the Seller pursuant to the Sale and Servicing Agreement and (b) all
rights with respect to the enforcement of any or all of the foregoing, all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under, and any and
all proceeds of every kind and nature with respect to, any or all of the
foregoing (collectively, the "Rights") and (ii) the Seller shall cause the
Certificates to be issued to the Company.
ARTICLE III
Representations and Warranties
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Section 3.01. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Seller as of the date hereof and as of the
Closing Date:
(a) Organization and Good Standing. The Company has been duly organized and
is validly existing as a limited liability company in good standing under the
laws of the State of Michigan, with the power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, the power, authority and legal right to acquire, own, hold and convey the
Rights.
(b) Due Qualification. The Company is duly qualified to do business as a
foreign limited liability company in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business shall require such
qualifications.
(c) Power and Authority. The Company has the power and authority to execute
and deliver this Agreement and to carry out its terms, and the execution,
delivery and performance of this Agreement have been duly authorized by the
Company by all necessary action.
(d) No Violation. The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof will not conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the articles of organization
or operating agreement of the Company, or any indenture, agreement or other
instrument to which the Company is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than the
Basic Documents); nor violate any law or, to the best of the Company's
knowledge, any order, rule or regulation applicable to the Company of any court
or of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Company or its
properties.
(e) No Proceedings. There are no proceedings or investigations pending or,
to the Company's best knowledge, threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Company or its properties: (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this Agreement.
Section 3.02. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Company as of the date hereof and as of
the Closing Date and any Transfer Date:
(a) Organization and Good Standing. The Seller has been duly organized and
is validly existing as a limited liability company in good standing under the
laws of the State of
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Michigan, with the power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the power, authority and
legal right to convey and assign the Rights.
(b) Due Qualification. The Seller is duly qualified to do business as a
foreign limited liability company in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(c) Power and Authority. The Seller has the power and authority to execute
and deliver this Agreement and to carry out its terms; the Seller has duly
authorized the sale and assignment of the Rights to the Company by all necessary
action; and the execution, delivery and performance of this Agreement have been
duly authorized by the Seller by all necessary action.
(d) No Violation. The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof will not conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the articles of organization
or operating agreement of the Seller, or any indenture, agreement or other
instrument to which the Seller is a party or by which it is bound; nor result in
the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than the
Basic Documents); nor violate any law or, to the best of the Seller's knowledge,
any order, rule or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties.
(e) No Proceedings. To the Seller's best knowledge, there are no
proceedings or investigations pending or threatened before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties: (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of, this
Agreement.
ARTICLE IV
Conditions
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Section 4.01. Conditions to Obligation of the Company. The obligation of
the Company to purchase the Rights and the Certificates is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and warranties
of the Seller hereunder shall be true and correct as of the date of execution of
this Agreement and as of the Closing Date with the same effect as if then made,
and the Seller shall have performed all obligations to be performed by it
hereunder on or prior to the Closing Date.
(b) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement to be consummated as of the Closing Date shall be
consummated as of such date.
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Section 4.02. Conditions to Obligation of the Seller. The obligation of the
Seller to sell the Rights to the Company and cause the Certificates to be issued
to the Company is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and warranties
of the Company hereunder shall be true and correct as of the date of execution
of this Agreement and as of the Closing Date with the same effect as if then
made, and the Company shall have performed all obligations to be performed by it
hereunder on or prior to the Closing Date.
(b) Purchase Price. On the Closing Date, the Company shall have delivered
to the Seller the purchase price specified in Section 2.01.
ARTICLE V
Covenants
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Section 5.01. Legal Existence. (a) During the term of this Agreement and
the Trust Agreement, the Company will keep in full force and effect its
existence, rights and franchises as a limited liability company under the laws
of the jurisdiction of its organization and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Agreement, the Basic Documents and each other instrument or agreement necessary
or appropriate to the proper administration of this Agreement, the Basic
Documents and the transactions contemplated hereby and thereby.
(b) During the term of this Agreement and the Trust Agreement, the Company
shall observe the applicable legal requirements for the recognition of the
Company as a legal entity separate and apart from its Affiliates, including as
follows:
(i) the Company shall maintain records and books of account separate
from those of its Affiliates;
(ii) except as otherwise provided in this Agreement, the Company shall
not commingle its assets and funds with those of its Affiliates;
(iii) the Company shall hold such appropriate meetings of its members
as are necessary to authorize all of the Company's actions required by law
to be authorized by the members thereof, shall keep minutes of such
meetings and observe all other customary formalities respecting limited
liability companies (and any successor Company that is not a limited
liability company shall observe similar procedures in accordance with its
governing documents and applicable law);
(iv) the Company shall at all times hold itself out to the public
under the Company's own name as a legal entity separate and distinct from
its Affiliates; and
(v) all transactions and dealings between the Company and its
Affiliates, including this Agreement, will be conducted on an arm's-length
basis.
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Section 5.02. Merger or Consolidation of, or Assumption of the Obligations
of, the Company. Any Person (a) into which the Company may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Company shall be a party or (c) which may succeed to the properties and assets
of the Company substantially as a whole, which Person in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Company under this Agreement and the Trust Agreement, shall be the successor to
the Company hereunder and thereunder without the execution or filing of any
document or any further act by any of the parties to this Agreement or the Trust
Agreement; provided, however, that (i) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Section 3.01 shall
have been breached, (ii) the Company shall have delivered to the Owner Trustee
and the Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been complied
with and (iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction. Notwithstanding anything herein to the contrary,
the execution of the foregoing agreement of assumption and compliance with
clauses (i), (ii) and (iii) above shall be conditions to the consummation of the
transactions referred to in clause (a), (b) or (c) above.
Section 5.03. Limitation on Liability of the Company and Others. The
Company and any director, officer, employee or agent of a member of the Company
may rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Company shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement or under the Trust Agreement, and that in its
opinion may involve it in any expense or liability.
Section 5.04. The Company May Own Notes. The Company may in its individual
or any other capacity become the owner or pledgee of Notes with the same rights
as it would have if it were not the Company, except as expressly provided herein
or in any Basic Document.
Section 5.05. Covenants of the Seller. (a) The Seller hereby agrees to
provide to the Company copies of each notice and certificate the Seller receives
pursuant to the Sale and Servicing Agreement insofar as such notice or
certificate relates to the Rights (including each Servicer's Certificate
delivered for each Payment Date pursuant thereto).
(b) The Seller hereby agrees that it will not, without the prior written
consent of the Company, enter into any amendment to the Sale and Servicing
Agreement or the Trust Agreement.
(c) The Seller shall not, prior to the date which is one year and one day
after the termination of the Sale and Servicing Agreement, acquiesce, petition
or otherwise invoke or cause the Company to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Company under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Company or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Company.
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Section 5.06. Sale of the Rights by the Company. After the Closing Date,
the Company may sell, transfer and assign the Rights to another Person (a
"Transferee"); provided, that the Indenture Trustee and the Owner Trustee shall
have received an Opinion of Counsel to the effect that such transfer will not
cause the Trust to be characterized as an association (or a publicly traded
partnership) taxable as a corporation for federal income tax purposes or
Michigan income and single business tax purposes. Notwithstanding anything
herein to the contrary, compliance with the proviso of the preceding sentence
shall be a condition to the consummation of the transaction referred to above.
ARTICLE VI
Miscellaneous
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Section 6.01. Amendment. This Agreement may be amended from time to time by
a written amendment duly executed and delivered by the Seller and the Company,
with the consent of the Indenture Trustee, but without the consent of the
Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Seller or the
Company; provided, however, that such amendment will not, as evidenced by an
Opinion of Counsel delivered to the Indenture Trustee, materially and adversely
affect the interest of any Noteholder or Certificateholder. This Agreement may
also be amended by the Seller and the Company with the consent of the Indenture
Trustee, the consent of the Holders of Notes evidencing at least a majority of
the Outstanding Amount of the Notes, the consent of the Holders (as defined in
the Trust Agreement) of Certificates evidencing at least a majority of all the
percentage interests evidenced by the Certificates for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Seller or the
Company; provided, however, that no such amendment shall (i) increase or reduce
in any manner the amount of, or accelerate or delay the timing of, collections
of payments on Receivables or distributions that are required to be made for the
benefit of Noteholders or Certificateholders or (ii) reduce the aforesaid
percentage of the Outstanding Amount of the Notes or the percentage interests
evidenced by the Certificates required to consent to any such amendment, without
the consent of the Holders of all the outstanding Notes and the Holders (as
defined in the Trust Agreement) of all the outstanding Certificates.
Promptly after the execution of any such amendment or consent, the Seller
shall furnish written notification of the substance of such amendment or consent
to each of the Rating Agencies.
Section 6.02. Waivers. No failure or delay on the part of the Company in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
Section 6.03. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Seller,
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to DaimlerChrysler Financial Services Americas LLC, 00000 Xxxxxxx Xxxx,
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, Attention of Assistant Secretary ((248)
427-2565) and (b) in the case of the Company, to DaimlerChrysler Retail
Receivables LLC, 00000 Xxxxxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, Attention
of Assistant Secretary ((000) 000-0000); or as to each of the foregoing, at such
other address as shall be designated by written notice to the other party.
Section 6.04. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Seller, the Company, the Servicer,
the Issuer, the Owner Trustee, the Certificateholders, the Indenture Trustee and
the Noteholders, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 6.05. Severability. Any provision of this Agreement that is
prohibited 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, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 6.06. Representations of the Seller and the Company. The respective
agreements, representations, warranties and other statements by the Seller and
the Company set forth in or made pursuant to this Agreement shall remain in full
force and effect and will survive the execution of this Agreement.
Section 6.07. Headings. The various headings in this Agreement are included
for convenience only and shall not affect the meaning or interpretation of any
provision of this Agreement. References in this Agreement to Section names or
numbers are to such Sections of this Agreement.
Section 6.08. 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.
Section 6.09. Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
* * * * * * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers duly authorized as of the date and year
first above written.
DAIMLERCHRYSLER FINANCIAL SERVICES
AMERICAS LLC
By:
-------------------------------------
Name:
Title:
DAIMLERCHRYSLER RETAIL RECEIVABLES LLC
By: Chrysler Financial Receivables
Corporation, as a Member
By:
-------------------------------------
Name:
Title:
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