1
Exhibit 10.1
PURCHASE AGREEMENT
This Purchase Agreement is made as of the 1st day of November, 1998, by
and between MERCEDES-BENZ CREDIT CORPORATION, a Delaware corporation (the
"Seller"), having its principal executive office at 000 Xxxxxxx 0, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxxx 00000-0000, and DAIMLER-BENZ VEHICLE RECEIVABLES
CORPORATION, a Delaware corporation (the "Purchaser"), having its principal
executive office at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, in the regular course of its business, the Seller purchases
certain retail installment contracts for, and retail loans evidenced by notes
secured by, new and used Mercedes-Benz automobiles and new and used medium- and
heavy-duty trucks and tractors manufactured by Freightliner Corporation and its
subsidiaries (collectively, "Freightliner") and used trucks and tractors and new
and used trailers manufactured by companies other than Freightliner.
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which the Receivables (as hereinafter defined) are to be sold by the
Seller to the Purchaser, which Receivables will be transferred by the Purchaser,
pursuant to the Sale and Servicing Agreement (as hereinafter defined), to the
Daimler-Benz Vehicle Owner Trust 1998-A (the "Trust") to be created thereunder,
which Trust will issue certain classes of notes (the "Notes") and certain
certificates (the "Certificates") representing fractional undivided interests in
such Receivables and the other property of the Trust.
NOW, THEREFORE, in consideration of the foregoing and the mutual terms
and covenants contained herein, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the meanings assigned to
such terms in the Sale and Servicing Agreement. As used in this Agreement, the
following terms shall, unless the context otherwise requires, have the following
meanings (such meanings to be equally applicable to the singular and plural
forms of the terms defined):
"Agreement" shall mean this Purchase Agreement and all amendments
hereof and supplements hereto.
"Assignment" shall mean an assignment in the form of Exhibit A hereto.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement dated as
2
of the date hereof by and among Mercedes-Benz Credit Corporation, in its
individual capacity and as Servicer, the Purchaser, as Seller, and Daimler-Benz
Vehicle Owner Trust 1998-A, as Issuer.
"Prospectus" shall have the meaning assigned to such term in the
Underwriting Agreement.
"Receivable" shall mean each retail installment contract which appears
on Exhibit B hereto and all amendments thereof and supplements thereto.
"Receivables Purchase Price" shall mean $1,631,454,551.40.
"Schedule of Receivables" shall mean the list of Receivables annexed
hereto as Exhibit B.
"Underwriting Agreement" shall mean the Note Underwriting Agreement
dated December 3, 1998 by and between Chase Securities Inc. and Xxxxxxx Xxxxx
Xxxxxx Inc., as representatives of the Underwriters, the Purchaser, as seller,
and Daimler-Benz North America Corporation.
"Underwriters" shall mean the several underwriters listed in Schedule I
to the Underwriting Agreement.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 Purchase and Sale of Receivables.
(a) Sale of Receivables. On the Closing Date, subject to the
terms and conditions of this Agreement, the Seller shall sell, transfer, assign
and otherwise convey to the Purchaser, without recourse, and the Purchaser shall
purchase, all right, title and interest of the Seller, whether now owned or
hereafter acquired, in and to the following: (i) the Receivables, and all monies
due thereunder on or after the Cutoff Date; (ii) all of the Seller's the
security interests in the Financed Vehicles; (iii) all of the Seller's rights to
receive proceeds from claims on physical damage, credit life and disability
insurance policies covering Financed Vehicles or the Obligors; (iv) the rights
of recourse of the Seller against Dealers arising out of breaches by Dealers
with respect to the Receivables; (v) all of the Seller's rights to all documents
contained in the Receivable Files; (vi) all property (including the right to
receive future liquidation proceeds and Recoveries) that secures a Receivable
and that will have been acquired by or on behalf of the Indenture Trustee; and
(vii) all proceeds of any and all of the foregoing. The sale, transfer,
assignment and conveyance made hereunder shall not constitute and is not
intended to
3
result in an assumption by the Purchaser of any obligation of the Seller to the
Obligors, the Dealers or any other Person in connection with the Receivables and
the property transferred under this Section 2.1(a) or any agreement, document or
instrument related thereto.
(b) Receivables Purchase Price. In consideration for the
Receivables and other properties described in Section 2.1(a), the Purchaser
shall, on the Closing Date, pay to the Seller the Receivables Purchase Price. An
amount equal to $1,546,971,721.48 of the Receivables Purchase Price shall be
paid to the Seller in cash. The remaining $84,482,829.92 of the Receivables
Purchase Price shall be deemed paid and returned to the Purchaser and be
considered a contribution to the capital of the Purchaser. The portion of the
Receivables Purchase Price to be paid in cash shall be paid by federal wire
transfer (same day) funds to such account in New York, New York as the Seller
shall designate.
2.2 The Closing. The sale and purchase of the Receivables shall take
place at a closing (the "Closing") at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing
Date, simultaneously with the closings under: (a) the Sale and Servicing
Agreement pursuant to which the Purchaser will transfer to the Trust all of the
Purchaser's right, title and interest in and to the Receivables and other
property described in Section 2.1(a) in exchange for the Notes and the
Certificates; and (b) the Underwriting Agreement, pursuant to which the
Purchaser will sell to the Underwriters the Notes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Purchaser. The Purchaser
makes the following representations and warranties:
(a) Organization and Good Standing. The Purchaser has been
duly organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware.
(b) Due Qualification. The Purchaser is duly qualified to do
business as a foreign corporation 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, except where the failure of the Purchaser to so qualify or
obtain such licenses or approvals would not have a material adverse affect on
the Purchaser, the Trust or any Receivable.
(c) Power and Authority. The Purchaser has the power and
authority to execute and deliver this Agreement and to carry out its terms. The
Purchaser has full power and authority to purchase the property to be sold and
assigned by the Seller and has duly authorized
4
such purchase by all necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by the Purchaser by all
necessary corporate action.
(d) Binding Obligations. This Agreement constitutes the legal,
valid and binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with its terms, except as enforceability may be eliminated by
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
(e) No Violation. The execution, delivery and performance by
the Purchaser of this Agreement and the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof do 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 certificate of
incorporation or bylaws of the Purchaser, or conflict with, or breach any of the
terms or provisions of, or constitute (with or without notice or lapse of time)
a default under, any indenture, agreement, mortgage, deed of trust or other
instrument to which the Purchaser is a party or by which the Purchaser is bound
or any of its properties are subject, or result in the creation or imposition of
any lien upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument or violate any law,
order, rule or regulation, applicable to the Purchaser or its properties, of any
federal or state regulatory body, any court, administrative agency, or other
governmental instrumentality having jurisdiction over the Purchaser or any of
its properties.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of the Purchaser, threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Purchaser or its properties: (a)
asserting the invalidity of this Agreement, (b) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, or (c)
seeking any determination or ruling that might materially and adversely affect
the performance by the Purchaser of its obligations under, or the validity or
enforceability of, this Agreement.
3.2 Representations and Warranties of the Seller
(a) The Seller makes the following representations and
warranties to the Purchaser:
(i) Organization and Good Standing. The Seller has
been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such
properties shall be currently owned and such business is currently
conducted, and had at all relevant times, and has, power, authority,
and legal right to acquire and own the Receivables.
(ii) Due Qualification. The Seller is duly qualified
to do
5
business as a foreign corporation 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, except where the failure of the Seller to
so qualify or obtain such licenses or approvals would not have a
material adverse effect on the Seller or any Receivable.
(iii) 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 full power and authority to sell and assign
the property to be sold and assigned to the Purchaser and has duly
authorized such sale and assignment to the Purchaser by all necessary
corporate action; and the execution, delivery, and performance of this
Agreement have been duly authorized by the Seller by all necessary
corporate action.
(iv) Valid Sale; Binding Obligations. This Agreement
and the Assignment effect a valid sale, transfer, and assignment of the
Receivables and the other property conveyed by the Seller to the
Purchaser hereunder, enforceable against creditors of and purchasers
from the Seller; and this Agreement and the Assignment constitute
legal, valid and binding obligations of the Seller, enforceable against
the Seller in accordance with their terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles.
(v) No Violation. The execution, delivery and
performance by the Seller of this Agreement and the consummation of the
transactions contemplated hereby and the fulfillment of the terms
hereof do 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 certificate of incorporation or bylaws of
the Seller, or conflict with, or breach any of the terms or provisions
of, or constitute (with or without notice or lapse of time) a default
under, any indenture, agreement, mortgage, deed of trust or other
instrument to which the Seller is a party or by which the Seller is
bound or any of its properties are subject, or result in the creation
or imposition of any lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or
other instrument, or violate any law, order, rule, or regulation,
applicable to the Seller or its properties, of any federal or state
regulatory body, any court, administrative agency, or other
governmental instrumentality having jurisdiction over the Seller or any
of its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or, to the knowledge of the Seller, threatened,
before any court, regulatory body, administrative agency, or other
tribunal or governmental
6
instrumentality having jurisdiction over the Seller or its properties:
(a) asserting the invalidity of this Agreement, (b) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement, or (c) 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.
(b) The Seller makes the following representations and
warranties as to the Receivables on which the Purchaser relies in accepting the
Receivables. Such representations and warranties speak as of the execution and
delivery of this Agreement, but shall survive the sale, transfer, and assignment
of the Receivables to the Purchaser and the subsequent assignment and transfer
pursuant to the Sale and Servicing Agreement:
(i) Characteristics of Receivables. Each Receivable
(a) was originated in the United States of America by a Dealer for the
retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, was fully and properly executed by the parties
thereto, was purchased by the Seller from such Dealer under an existing
Dealer Agreement with the Seller, was validly assigned by such Dealer
to the Seller, (b) contains customary and enforceable provisions such
that the rights and remedies of the holder thereof shall be adequate
for realization against the collateral of the benefits of the security,
(c) except in the case of a Balloon Receivable, provides for level
monthly payments that fully amortize the Amount Financed by maturity
and yields interest at the APR of such Receivable, and in the case of a
Balloon Receivable, provides for fixed monthly payments that amortize
the Amount Financed to an amount equal to the Balloon Payment by
maturity, provides for a Balloon Payment at maturity that is sufficient
to pay the remaining Amount Financed of the Receivable, and yields
interest at the APR of such Receivable, (d) is a retail installment
contract, (e) is secured by one or more Financed Vehicles.
(ii) Schedule of Receivables. The information set
forth in Exhibit B to this Agreement was true and correct in all
material respects as of the opening of business on the Cutoff Date, and
no selection procedures believed by the Seller to be adverse to the
Certificateholders were utilized in selecting the Receivables.
(iii) Compliance with Law. Each Receivable and the
sale of the related Financed Vehicle complied at the time it was
originated or made, and complies at the execution of this Agreement, in
all material respects with all requirements of applicable federal,
state, and local laws, and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade
7
Commission Act, the Xxxxxxxxx-Xxxx Warranty Act, the Federal Reserve
Board's Regulations B and Z, and state adaptations of the National
Consumer Act and of the Uniform Consumer Credit Code, and other
consumer credit laws and equal credit opportunity and disclosure laws.
(iv) Binding Obligations. To the best of the Seller's
knowledge, each Receivable represents the legal, valid, and binding
payment obligation in writing of the related Obligor, enforceable by
the holder thereof in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles.
(v) No Government Obligor. Neither the United States
of America nor any State or any agency, department, or instrumentality
of the United States of America or any State is an Obligor.
(vi) Security Interest in Financed Vehicles. To the
best of the Seller's knowledge, immediately prior to the sale,
assignment, and transfer of each Receivable to the Purchaser hereunder,
such Receivable shall be secured by a validly perfected first priority
security interest and lien in the related Financed Vehicle in favor of
the Seller as secured party. Such security interest and lien is being
assigned by the Seller to the Purchaser pursuant to this Agreement
except that no certificate of title or certificate of ownership with
respect to such Financed Vehicle has been or will be amended to
identify the Purchaser as a secured party. At such time as enforcement
of such security interest is sought, there shall exist a valid,
subsisting and enforceable first priority security interest in such
Financed Vehicle for the benefit of the Purchaser. The foregoing
representations and warranties with respect to perfection and
enforceability of a security interest in a Financed Vehicle do not
cover statutory or other liens arising after the Closing Date by
operation of law or any rights of third parties arising after the
Closing Date as a result of the fraud or forgery of the Vehicle owner
or administrative error by state recording officials which are prior to
such security interest.
(vii) Receivables in Force. No Receivable shall have
been satisfied, subordinated, or rescinded, nor shall any Financed
Vehicle have been released from the Lien granted by the related
Receivable in whole or in part, which security interest shall be
assignable by the Seller to the Purchaser and by the Purchaser to the
Trust.
(viii) No Waiver. No provision of a Receivable shall
have been waived in such a manner that such Receivable fails to meet
all of the representations and warranties made by the Seller in this
Section 3.2.
8
(ix) No Defenses. No right of rescission, setoff,
counterclaim, or defense has been asserted or, to the best of the
Seller's knowledge, threatened with respect to any Receivable.
(x) No Liens. To the best of Seller's knowledge, no
liens or claims have been filed for work, labor, or materials relating
to a Financed Vehicle that are liens prior to, or equal or on a parity
with, the secured interest in the Financed Vehicle granted by the
related Receivable.
(xi) No Default, Repossession. Except for payment
defaults continuing for a period of not more than thirty (30) days in
the case of Motor Vehicles or sixty (60) days in the case of Commercial
Vehicles as of the Cutoff Date, to the best of the Seller's knowledge,
no default, breach, violation, or event permitting acceleration under
the terms of any Receivable and no event that with notice or the lapse
of time would constitute such a default, breach, violation, or event
permitting acceleration under the terms of any Receivable has occurred;
and no Financed Vehicle was repossessed on or prior to the Cutoff Date.
(xii) Insurance. Except in the case of certain fleet
customers which are permitted to be self-insured in accordance with the
Seller's customary standards, the Seller, in accordance with its
customary procedures, has determined that each Obligor has obtained or
agreed to obtain physical damage insurance covering the Financed
Vehicle.
(xiii) Title. It is the intention of the Seller that
the transfer and assignment of the Receivables herein contemplated
constitute a sale of the Receivables from the Seller to the Purchaser
and that the beneficial interest in and title to the Receivables not be
part of the Seller's estate in the event of the filing of a bankruptcy
petition or the commencement of any Proceeding by or against the Seller
under any bankruptcy or other insolvency law. No Receivable has been
sold, transferred, assigned, or pledged by the Seller to any Person
other than the Purchaser. The Seller is transferring title to each
Receivable free and clear of all Liens and rights of others and has
perfected such transfer under the UCC.
(xiv) Valid Assignment. No Receivable was originated
in, or is subject to the laws of, any jurisdiction under which the
sale, transfer, and assignment of such Receivable under this Agreement
is unlawful, void, or voidable. The Seller has not entered into any
agreement with any Obligor that prohibits, restricts or conditions the
assignment of any portion of the Receivables.
(xv) All Filings Made. All filings (including,
without limitation, UCC filings) and agreements necessary in any
jurisdiction to give the Purchaser a first priority perfected security
interest in the Receivables have been made.
9
(xvi) Chattel Paper. Each Receivable constitutes
"chattel paper" as defined in the UCC.
(xvii) One Original. There is only one original
executed copy of each Receivable.
(xviii) Principal Balance. Each Receivable had a
remaining Principal Balance as of the Cutoff Date of not more than
$5,617,494.16 and not less than $217.25.
(xix) No Bankrupt Obligors. To the best of the
Seller's knowledge, no Obligor under any Receivable was, as of the
Cutoff Date, the subject of a Proceeding under the Bankruptcy Code of
the United States or any other bankruptcy or insolvency law.
(xx) New and Used Vehicles. Approximately 70.13% of
the aggregate Principal Balance of the Receivables, constituting 57.53%
of the Receivables as of the Cutoff Date relate to new Financed
Vehicles, and approximately 29.87% of the aggregate Principal Balance
of the Receivables, constituting 42.47% of the number of Receivables as
of the Cutoff Date, relate to used Financed Vehicles.
(xxi) Origination. Each Receivable shall have an
origination date during or after November 7, 1991.
(xxii) Maturity of Receivables. Each Receivable had a
remaining maturity, as of the Cutoff Date, of not more than 84 months
and an original maturity of not more than 85 months.
(xxiii) Annual Percentage Rate. Each Receivable has
an APR of at least 8.25% and not more than 13.0%.
(xxiv) Scheduled Payments. Each Receivable shall have
a first Scheduled Payment due on or prior to November 1, 1998, and no
Receivable shall have a payment that was more than thirty (30) days
overdue in the case of Motor Vehicles and sixty (60) days overdue in
the case of Commercial Vehicles as of the Cutoff Date.
(xxv) Billing Address. The Obligor under each
Receivable had a current billing address in the United States as of the
Cutoff Date.
(xxvi) Location of Receivable Files. The Receivable
Files shall be kept at one or more of the locations listed in Schedule
B to the Sale and Servicing Agreement.
10
(xxvii) Other Data. The tabular data and the
numerical data relating to the characteristics of the Receivables
contained in the Prospectus is true and correct in all material
respects as of its date.
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser. The obligation of the
Purchaser to purchase the Receivables 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 on 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) Computer Files Marked. The Seller shall, at its own
expense, on or prior to the Closing Date, indicate in its computer files that
the Receivables have been sold to the Purchaser pursuant to this Agreement and
deliver to the Purchaser the Schedule of Receivables certified by an officer of
the Seller to be true, correct and complete.
(c) Documents to be delivered by the Seller at the Closing.
(i) The Assignment. At the Closing, the Seller will
execute and deliver the Assignment.
(ii) Evidence of UCC Filing. On or prior to the
Closing Date, the Seller shall record and file, at its own expense, a
UCC-1 financing statement in each jurisdiction in which it is required
by applicable law, executed by the Seller, as seller or debtor, and
naming the Purchaser, as purchaser or secured party, naming the
Receivables and the other property conveyed hereunder as collateral,
meeting the requirements of the laws of each such jurisdiction and in
such manner as is necessary to perfect the sale, transfer, assignment
and conveyance of such Receivable to the Purchaser. The Seller shall
deliver a file-stamped copy, or other evidence satisfactory to the
Purchaser of such filing, to the Purchaser as soon as practicable.
(iii) Other Documents. Such other documents as the
Purchaser may reasonably request.
(d) Other Transactions. The transactions contemplated by the
Sale and Servicing Agreement shall be consummated on the Closing Date.
11
4.2 Conditions to Obligation of the Seller. The obligation of the
Seller to sell the Receivables to the Purchaser is subject to the satisfaction
of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Purchaser hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and the Purchaser shall have
performed all obligations to be performed by it hereunder on or prior to the
Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the Purchaser
will deliver to the Seller the Receivables Purchase Price, as provided in
Section 2.1(b).
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows, provided, however,
that to the extent that any provision of this ARTICLE V conflicts with any
provision of the Sale and Servicing Agreement, the Sale and Servicing Agreement
shall govern:
5.1 Protection of Right, Title and Interest.
(a) The Seller shall execute and file such financing statements and
cause to be executed and filed such continuation statements, all in such manner
and in such places as may be required by law fully to preserve, maintain, and
protect the interest of the Purchaser in the Receivables and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered) to the Purchaser
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) The Seller shall not change its name, identity or corporate
structure in any manner that would, could, or might make any financing statement
or continuation statement filed by the Seller in accordance with Section 5.1(a)
above seriously misleading within the meaning of ss. 9-402(7) of the UCC, unless
it shall have given the Purchaser at least five days' prior written notice
thereof and shall have promptly filed appropriate amendments to all previously
filed financing statements or continuation statements.
(c) The Seller shall give the Purchaser at least 60 days' prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment.
5.2 Costs and Expenses. The Seller agrees to pay all reasonable costs
and disbursements in connection with the perfection, as against all third
parties, of the Purchaser's
12
right, title and interest in and to the Receivables.
5.3 Indemnification. The Seller shall indemnify and hold harmless the
Purchaser from and against any and all taxes that may at any time be asserted
against the Purchaser with respect to the transactions contemplated herein,
including, without limitation, any sales, gross receipts, general corporation,
tangible personal property, privilege, or license taxes and costs and expenses
in defending against the same except for income, franchise or other taxes
measured by net income. These indemnity obligations shall be in addition to any
obligation that the Seller may otherwise have.
5.4 Sale. The Seller agrees to treat this conveyance for all purposes
(including without limitation tax and financial accounting purposes) as a sale
on all relevant books, records, tax returns, financial statements and other
applicable documents.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller. The obligations of the Seller under this
Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
6.2 Repurchase upon Breach. The Purchaser shall inform the Seller
promptly, in writing, upon the discovery of any breach or failure to be true of
the representations and warranties made by the Seller pursuant to Section 3.2(b)
and, in the case of subsections 3.2(b)(iv), (vi), (ix), (x), (xi) and (xix), any
breach or failure which would have occurred if such warranty had not been made
to the best knowledge of the Seller. Unless the breach or failure shall have
been cured by the last day of the Collection Period which includes the 60th day
after the date on which the Seller becomes aware of, or receives written notice
from the Purchaser of, such breach or failure, the Seller shall repurchase from
the Purchaser any Receivable, the interests of the Purchaser in which are
materially and adversely affected by the breach or failure, on the Payment Date
immediately following such Collection Period but with effect from the first day
of the Collection Period in which such Payment Date occurs. In consideration of
the purchase of a Receivable hereunder, the Seller shall remit the Purchase
Amount of such Receivable to the Purchaser. The sole remedy of the Purchaser
with respect to a breach or failure to be true of the representations and
warranties made by the Seller pursuant to Section 3.2(b) shall be to require the
Seller to repurchase the relevant Receivable pursuant to this Section 6.2.
6.3 Purchaser's Assignment of Repurchased Receivables. With respect to
all Receivables purchased by the Seller pursuant to Section 6.2, the Purchaser
shall assign, without recourse, representation, or warranty, to the Seller all
the Purchaser's right, title, and interest in and to such Receivables, and all
security and documents and all other property conveyed pursuant to Section
2.1(a) with respect to such Receivables. Such assignment shall be a sale and
assignment outright, and not for security. If, in any enforcement suit or legal
proceeding, it is
13
held that the Seller may not enforce any such Receivable on the ground that it
shall not be a real party in interest or a holder entitled to enforce the
Receivable, the Purchaser and any transferee or assignee of the Purchaser shall,
at the expense of the Seller, take such steps as the Seller deems necessary to
enforce the Receivable, including bringing suit in the Purchaser's name or in
the name of any transferee or assignee of the Purchaser.
6.4 Trust. The seller acknowledges that: the Purchaser will, pursuant
to the Sale and Servicing Agreement, sell the Receivables to the Trust and
assign its rights under this Agreement to the Trustee for the benefit of the
Noteholders and Certificateholders. The Seller hereby consents to such sale and
assignment.
6.5 Amendment. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Seller and the Purchaser.
6.6 Accountants' Letters.
(a) KPMG Peat Marwick will review the characteristics of the
Receivables described in the Schedule of Receivables hereto and will compare
those characteristics to the information with respect to the Receivables
contained in the Prospectus.
(b) The Seller will cooperate with the Purchaser and KPMG Peat
Marwick in making available all information and taking all steps reasonably
necessary to permit such accountants to complete the review set forth in Section
6.6(a) above and to deliver the letters required of them under the Underwriting
Agreement.
(c) KPMG Peat Marwick will deliver to the Purchaser a letter,
dated the date of the Prospectus, in the form previously agreed to by the Seller
and the Purchaser, with respect to the financial and statistical information
contained in the Prospectus under the caption "Delinquency and Loss Experience"
and with respect to such other information as may be agreed in the form of
letter.
6.7 Waivers. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under this Agreement or the Assignment
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.
6.8 Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered, sent by telecopier, sent by
courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been given upon receipt to either party at its address shown in
the opening portion of this Agreement or at such other address as may be
designated by a party by notice to the other party.
6.9 Costs and Expenses. The Seller will pay all expenses incident to
the performance of its obligations under this Agreement and the Seller agrees to
pay all reasonable out-of-pocket
14
costs and expenses of the Purchaser, excluding fees and expenses of counsel, in
connection with the perfection as against third parties of the Purchaser's
right, title and interest in and to the Receivables and the enforcement of any
obligation of the Seller hereunder.
6.10 Confidential Information. The Purchaser agrees that it will
neither use nor disclose to any person the names and addresses of the Obligors,
except in connection with the performance by the Purchaser of its obligations,
or the enforcement of the Purchaser's rights, under this Agreement, the
Receivables or the Sale and Servicing Agreement or as required by law.
6.11 Governing Law. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES UNDER THIS AGREEMENT AND THE ASSIGNMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
15
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date and year first above written.
MERCEDES-BENZ CREDIT CORPORATION
By /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Director, Accounting Services
DAIMLER-BENZ VEHICLE RECEIVABLES
CORPORATION
By /s/ H. S. Traison
Name: Xxxxxx X. Xxxxxxx
Title: President
16
ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as
of November 1, 1998, between the undersigned and DAIMLER-BENZ VEHICLE
RECEIVABLES CORPORATION (the "Purchaser") (the "Purchase Agreement"), the
undersigned does hereby sell, assign transfer and otherwise convey unto the
Purchaser, without recourse, all right, title and interest of the undersigned
whether nor owned or hereafter acquired, in and to the following: (i) the
Receivables, and all monies due thereunder on or after the Cutoff Date; (ii) all
of the Seller's the security interests in the Financed Vehicles; (iii) all of
the Seller's rights to receive proceeds from claims on physical damage, credit
life and disability insurance policies covering Financed Vehicles or the
Obligors; (iv) the rights of recourse of the Seller against Dealers arising out
of breaches by Dealers with respect to the Receivables; (v) all of the Seller's
rights to all documents contained in the Receivable Files; (vi) all property
(including the right to receive future liquidation proceeds and Recoveries) that
secures a Receivable and that will have been acquired by or on behalf of the
Indenture Trustee; and (vii) all proceeds of any and all of the foregoing. The
sale, transfer, assignment and conveyance made hereunder shall not constitute
and is not intended to result in an assumption by the Purchaser of any
obligation of the Seller to the Obligors, the Dealers or any other Person in
connection with the Receivables and the property transferred under this Section
2.1(a) or any agreement, document or instrument related thereto.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in or pursuant to the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of December 10, 1998.
MERCEDES-BENZ CREDIT CORPORATION
By
Name:
Title
17
Exhibit B
Schedule of Receivables
DELIVERED TO PURCHASER
AT CLOSING
