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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 and certain certificates
representing fractional undivided interests in such Receivables and the other
property of the Trust (the "Certificates").
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 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 $ .
"Schedule of Receivables" shall mean the list of Receivables annexed hereto
as Exhibit B.
"Underwriting Agreement" shall mean the Underwriting Agreement dated
December , 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.
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"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 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 $ of the Receivables Purchase Price shall be paid to the Seller in
cash. The remaining $ 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,
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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 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 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,
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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
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
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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 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.
(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
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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.
(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
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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.
(xxvii) 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.
(xxix) 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 on or prior
to the Closing Date.
(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.
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.
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(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 sec. 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 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
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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 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 Indenture 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
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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 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.
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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
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Name: Xxxxx X. Xxxxxxx
Title: Director, Accounting Services
DAIMLER-BENZ VEHICLE RECEIVABLES
CORPORATION
By
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Name: Xxxxxx X. Xxxxxxx
Title: President
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EXHIBIT A
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 November 1, 1998.
MERCEDES-BENZ CREDIT CORPORATION
By
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Name:
Title
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EXHIBIT B
SCHEDULE OF RECEIVABLES
DELIVERED TO PURCHASER
AT CLOSING
