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Exhibit 4.4
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT, dated as of November 1, 1998 (as the
same may be amended, supplemented or otherwise modified and in effect from time
to time, this "Administration Agreement"), is by and among DAIMLER-BENZ VEHICLE
OWNER TRUST 1998-A, a Delaware business trust (the "Issuer"), MERCEDES-BENZ
CREDIT CORPORATION, a Delaware corporation, as administrator (the
"Administrator"), and CITIBANK, N.A., a national banking association, not in its
individual capacity but solely as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing 5.27125% Class A-1 Asset Backed
Notes, 5.23% Class A-2 Asset Backed Notes, 5.16% Class A-3 Asset Backed Notes
and 5.22% Class A-4 Asset Backed Notes (collectively, the "Notes") pursuant to
the Indenture, dated as of November 1, 1998 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Indenture"), between
the Issuer and the Indenture Trustee (capitalized terms used and not otherwise
defined herein shall have the meanings assigned to such terms in, or
incorporated by reference into, the Indenture) and is concurrently issuing 5.62%
Class B Asset Backed Certificates (collectively, the "Certificates") pursuant to
the Amended and Restated Trust Agreement, dated as of November 1, 1998 (as
amended, supplemented or otherwise modified and in effect from time to time, the
"Trust Agreement") between the Issuer and Chase Manhattan Bank Delaware, not in
its individual capacity but solely as Owner Trustee (the "Owner Trustee");
WHEREAS, the Issuer has entered into certain agreements in
connection with the issuance of the Notes and of the Certificates, including
(i) a Sale and Servicing Agreement, dated as of November 1, 1998 (as amended,
supplemented or otherwise modified and in effect from time to time, the "Sale
and Servicing Agreement"), among the Issuer, Mercedes-Benz Credit Corporation,
as servicer, and Daimler-Benz Vehicle Receivables Corporation, as seller (the
"Seller"), (ii) a Letter of Representations dated as of November 1, 1998 (as
amended, supplemented or otherwise modified and in effect from time to time, the
"Note Depository Agreement"), among the Issuer, the Indenture Trustee and The
Depository Trust Company
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("DTC") relating to the Notes, (iii) the Indenture, (iv) the Trust Agreement,
(v) the Control Agreement and the Servicing Guaranty Agreement (the Sale and
Servicing Agreement, the Note Depository Agreement, the Indenture, the Trust
Agreement, the Control Agreement and the Servicing Guaranty Agreement being
referred to herein after collectively as the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and
the Owner Trustee are required to perform certain duties in connection with (a)
the Notes and the collateral therefor pledged pursuant to the Indenture (the
"Collateral") and (b) the Certificates (the registered holders of such interests
being referred to herein as the "Owners");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the
services required hereby and is willing to perform such services for the Issuer
and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator. (a) Duties with Respect to the Related
Agreements. (i) The Administrator agrees to perform all its duties as
Administrator under the Note Depository Agreement. In addition, the
Administrator shall consult with the Owner Trustee regarding the duties of the
Issuer or the Owner Trustee under the Related Agreements. The Administrator
shall monitor the performance of the Issuer and shall advise the Owner Trustee
when action is necessary to comply with the Issuer's or the Owner Trustee's
duties under the Related Agreements. The Administrator shall prepare for
execution by the Issuer or the Owner Trustee, or shall cause the preparation by
other appropriate persons of, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the Related Agreements. In
furtherance of the foregoing, the Administrator shall take all appropriate
action that is the duty of the Issuer or the Owner Trustee to take pursuant to
the Indenture
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including, without limitation, such of the foregoing as are required with
respect to the following matters under the Indenture (references are to sections
of the Indenture):
(A) the duty to cause the Note Register to be kept and to give
the Indenture Trustee written notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note Register
(Section 2.5);
(B) the notification of Noteholders of the final principal
payment on their Notes (Section 2.8(e));
(C) the preparation or obtaining of the documents and
instruments required for authentication of the Notes and delivery of
the same to the Indenture Trustee (Section 2.2);
(D) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of Collateral (Section 2.10);
(E) the maintenance of an office in the Borough of Manhattan,
City of New York, for registration of the transfer or exchange of Notes
(Section 3.2);
(F) the duty to cause newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3);
(G) the direction to the Indenture Trustee to deposit monies
with Paying Agents, if any, other than the Indenture Trustee (Section
3.3);
(H) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Certificates, the
Collateral and each other instrument and agreement included in the
Owner Trust Estate (Section 3.4);
(I) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking
of such other action
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as is necessary or advisable to protect the Owner Trust Estate or the
Collateral (Section 3.5);
(J) the delivery of the Opinion of Counsel on the Closing Date
and the annual delivery of Opinions of Counsel as to the Owner Trust
Estate, and the annual delivery of the Officer's Certificate and
certain other statements as to compliance with the Indenture (Sections
3.6 and 3.9);
(K) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has contracted
to perform its duties under the Indenture (Section 3.7(b));
(L) the written notification of the Indenture Trustee and the
Rating Agencies of an Event of Servicing Termination under the Sale and
Servicing Agreement and, if such Event of Servicing Termination arises
from the failure of the Servicer to perform any of its duties under the
Sale and Servicing Agreement with respect to the Receivables, the
taking of all reasonable steps available to remedy such failure
(Section 3.7(d));
(M) the duty to cause the Servicer to comply with Sections
3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, and 4.9 and Article VI of the
Sale and Servicing Agreement (Section 3.14);
(N) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its properties or assets
(Section 3.10(b));
(O) the delivery of written notice to the Indenture Trustee
and the Rating Agencies of each Event of Default under the Indenture
and each default by the Issuer, the Servicer or the Seller under the
Sale and Servicing Agreement and by the Seller or Mercedes-Benz Credit
Corporation under the Purchase Agreement (Section 3.19);
(P) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinion of Counsel and
the Independent Certificate relating thereto (Section 4.2);
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(Q) the compliance with any written directive of the Indenture
Trustee with respect to the sale of any Collateral at one or more
public or private sales called and conducted in any manner permitted by
law if an Event of Default shall have occurred and be continuing
(Section 5.4);
(R) the preparation and delivery of notice to Noteholders of
the removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.8);
(S) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee
and any written instruments necessary in connection with the
resignation or removal of any co-trustee or separate trustee (Sections
6.8 and 6.10);
(T) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee
is not the Note Registrar (Section 7.1);
(U) the preparation and, after execution by the Issuer, the
filing with the Securities and Exchange Commission (the "Commission"),
any applicable state agencies and the Indenture Trustee of documents
required to be filed on a periodic basis with, and summaries thereof as
may be required by rules and regulations prescribed by, the Commission
and any applicable state agencies and the transmission of such
summaries, as necessary, to the Noteholders (Section 7.3);
(V) the opening of one or more accounts in the Issuer's name,
the preparation and delivery of Issuer Orders, Officer's Certificates
and Opinions of Counsel and all other actions necessary with respect to
the establishment and maintenance of, and the investment and
reinvestment of funds in, the Collection Account, the Payahead Account,
the Reserve Accounts, the Note Distribution Account and the Certificate
Distribution Account (Sections 8.2 and 8.3);
(W) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Collateral (Sections
8.4 and 8.5);
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(X) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect
to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(Y) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.6);
(Z) the duty to notify Noteholders of redemption of the Notes
or to cause the Indenture Trustee to provide such notification (Section
10.2);
(A2) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates with
respect to any requests by the Issuer to the Indenture Trustee to take
any action under the Indenture (Section 11.1(a));
(B2) the preparation and delivery of Officer's Certificates
and the obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section 11.1(c));
(C2) the notification of the Rating Agencies, upon the failure
of the Indenture Trustee to give such notification, of the information
required pursuant to Section 11.4 of the Indenture (Section 11.4);
(D2) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment
and notice provisions (Section 11.6);
(E2) the recording of the Indenture, if applicable (Section
11.15); and
(F2) the preparation of Definitive Notes, if necessary, in
accordance with the instructions of the Clearing Agency (Section
2.13).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee under
the Indenture pursuant to Section 6.7 of the Indenture (which
compensation shall
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not be limited by any provision of law in regard to the compensation of
a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee in accordance with any provision of the Indenture (including
the reasonable compensation, expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents, directors,
officers and employees for, and hold them harmless against, any losses,
liability or expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Indenture, or
under any of the Basic Documents, including the reasonable costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties under the Indenture; and
(D) indemnify the Owner Trustee (in its individual and trust
capacities) and its agents, directors, officers and employees for, and
hold them harmless against, any losses, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the transactions
contemplated by the Trust Agreement, or under any of the Basic
Documents, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties under the
Trust Agreement.
(b) Additional Duties. (i) In addition to the duties of the
Administrator set forth above, the Administrator shall perform such calculations
and shall prepare or shall cause the preparation by other appropriate persons
of, and shall execute on behalf of the Issuer or the Owner Trustee, all such
documents, reports, filings, instruments, certificates and opinions that it
shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Related Agreements or Sections 3.4 or 5.5 of the Trust
Agreement, and at the request of the Owner Trustee shall take all appropriate
action that it is the duty of the Issuer or the Owner Trustee to take pursuant
to the Related Agreements. In furtherance thereof, the Owner
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Trustee shall, on behalf of itself and of the Issuer, execute and deliver to the
Administrator and to each successor Administrator appointed pursuant to the
terms hereof, one or more powers of attorney substantially in the form of
Exhibit A hereto, appointing the Administrator the attorney-in-fact of the Owner
Trustee and the Issuer for the purpose of executing on behalf of the Owner
Trustee and the Issuer all such documents, reports, filings, instruments,
certificates and opinions. Subject to Section 5 of this Agreement, and in
accordance with the directions of the Owner Trustee, the Administrator shall
administer, perform or supervise the performance of such other activities in
connection with the Collateral (including the Related Agreements) as are not
covered by any of the foregoing provisions and as are expressly requested by the
Owner Trustee and are reasonably within the capability of the Administrator.
Such responsibilities shall include the obtainment and maintenance of any
licenses required to be obtained or maintained by the Trust under the
Pennsylvania Motor Vehicle Sales Finance Act. In addition, the Administrator
shall promptly notify the Indenture Trustee and the Owner Trustee in writing of
any amendment to the Pennsylvania Motor Vehicle Sales Finance Act that would
affect the duties or obligations of the Indenture Trustee or the Owner Trustee
under any Basic Document and shall assist the Indenture Trustee or the Owner
Trustee in its obtainment and maintenance of any licenses required to be
obtained or maintained by the Indenture Trustee or the Owner Trustee thereunder.
In connection therewith, the Administrator shall cause the Seller to pay all
fees and expenses under such Act.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding
tax is imposed on the Trust's payments (or allocations of income) to an
Owner as contemplated in Section 5.2(d) of the Trust Agreement. Any
such notice shall specify the amount of any withholding tax required to
be withheld by the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for performance of the duties of the Trust or the Owner
Trustee set forth in Section 5.5 of the Trust Agreement with respect
to, among other things, accounting and reports to Owners.
(iv) The Administrator will provide prior to January 15, 2000,
a certificate of an Authorized Officer in form and substance
satisfactory to the Owner Trustee as to whether any tax withholding is
then required and, if
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required, the procedures to be followed with respect thereto to comply
with the requirements of the Code. The Administrator shall be required
to update the letter in each instance that any additional tax
withholding is subsequently required or any previously required tax
withholding shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement
required to be performed in connection with the resignation or removal
of the Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement or any other
Related Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its affiliates; provided,
however, that the terms of any such transactions or dealings shall be
in accordance with any directions received from the Issuer and shall
be, in the Administrator's reasonable judgment, no less favorable to
the Issuer than would be available from unaffiliated parties.
(c) Non-Ministerial Matters. (i) With respect to matters that
in the reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time before
the taking of such action, the Administrator shall have notified the Owner
Trustee of the proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the preceding
sentence, "non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables or Permitted Investments in the ordinary course of
business);
(C) the amendment, change or modification of any of the
Related Agreements;
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(D) the appointment of any successor Note Registrar, successor
Paying Agent and successor Indenture Trustee pursuant to the Indenture
or the appointment of any successor Administrator or Successor
Servicer, or the consent to the assignment by any Note Registrar,
Paying Agent or Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not,
(x) make any payments to the Noteholders under the Related Agreements
or (y) take any other action that the Issuer directs the Administrator
not to take on its behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Company at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and, as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $100 per month
which shall be payable by the Servicer in accordance with Section 3.8 of the
Sale and Servicing Agreement and Section 8.1 of the Trust Agreement.
4. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not
be subject to the supervision of the Issuer or the Owner Trustee with respect
to the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
6. No Joint Venture. Nothing contained in this Agreement (a) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated busi-
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ness or other separate entity, (b) shall be construed to impose any liability as
such on any of them or (c) shall be deemed to confer on any of them any express,
implied or apparent authority to incur any obligation or liability on behalf of
the others.
7. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
8. Term of Agreement; Resignation and Removal of Administrator. (a)
This Agreement shall continue in force until the dissolution of the Issuer, upon
which event this Agreement shall automatically terminate.
(b) Subject to Sections 8(e) and 8(f), the Administrator may
resign its duties hereunder by providing the Issuer with at least sixty (60)
days' prior written notice.
(c) Subject to Sections 8(e) and 8(f) and Section 4.2 of the
Trust Agreement, the Issuer may remove the Administrator without cause by
providing the Administrator with at least sixty (60) days' prior written notice.
(d) Subject to Sections 8(e) and 8(f), at the sole option of
the Issuer, subject to Section 4.2 of the Trust Agreement, the Administrator may
be removed immediately upon written notice of termination from the Issuer to the
Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default,
shall not cure such default within ten (10) days (or, if such default
cannot be cured in such time, shall not give within ten (10) days such
assurance of cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been vacated within sixty (60) days, in respect of the Administrator in
any involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian,
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trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or
liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses (ii) or
(iii) of this Section 8(d) shall occur, it shall give written notice thereof to
the Issuer and the Indenture Trustee within seven (7) days after the happening
of such event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer, (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same manner
as the Administrator is bound hereunder and (iii) the Owner Trustee shall have
complied with Section 4.2 of the Trust Agreement.
(f) The appointment of any successor Administrator shall be
effective only after satisfaction of (i) the Rating Agency Condition with
respect to the proposed appointment and (ii) Section 4.2 of the Trust Agreement.
(g) Subject to Section 8(e) and 8(f), the Administrator
acknowledges that upon the appointment of a Successor Servicer pursuant to the
Sale and Servicing Agreement, the Administrator shall immediately resign and
such Successor Servicer shall automatically become the Administrator under this
Agreement.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a), the
resignation of the Administrator pursuant to Section 8(b) or the removal of the
Administrator pursuant to Section 8(c) or (d), the Administrator shall be
entitled to be paid all fees and reimbursable expenses accruing to it to this
date of such termination, resignation or removal. The Administrator shall
forthwith upon such termina-
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tion pursuant to Section 8(a) deliver to the Issuer all property and documents
of or relating to the Collateral then in the custody of the Administrator. In
the event of the resignation of the Administrator pursuant to Section 8(b) or
the removal of the Administrator pursuant to Section 8(c) or (d), the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
Daimler-Benz Vehicle Owner Trust 0000-X
x/x Xxxxx Xxxxxxxxx Xxxx Xxxxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) if to the Administrator, to:
Mercedes-Benz Credit Corporation
000 Xxxxxxx 0 Xxxxx 000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Director, Accounting
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(c) If to the Indenture Trustee, to:
Citibank, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Global Agency and Trust Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000/4024
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or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by each of the Issuer, the
Administrator and the Indenture Trustee, with the written consent of the Owner
Trustee but without the consent of the Noteholders and the Certificateholders,
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 Noteholders or Certificateholders; provided that such
amendment will not, as set forth in an Opinion of Counsel satisfactory to the
Indenture Trustee and the Owner Trustee, materially and adversely affect the
interest of any Noteholder or Certificateholder. This Agreement may also be
amended by the Issuer, the Administrator and the Indenture Trustee with the
written consent of the Owner Trustee and the holders of Notes evidencing at
least a majority of the Outstanding Amount of the Notes or, if the Notes have
been paid in full and the Indenture discharged in accordance with its terms, the
holders of Certificates evidencing at least a majority of the Certificate
Balance 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 Noteholders or the Certificateholders; provided, however,
that no such amendment may (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 the Noteholders or
Certificateholders or (ii) reduce the aforesaid percentage of the holders of
Notes and Certificates which are required to consent to any such amendment,
without the consent of the holders of all the outstanding Notes and
Certificates. Notwithstanding the foregoing, the Administrator may not amend
this Agreement without the consent of the Seller, which permission shall not be
unreasonably withheld.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. Any assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger,
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consolidation or purchase of assets) to the Administrator; provided that such
successor organization executes and delivers to the Issuer, the Owner Trustee
and the Indenture Trustee an agreement in which such corporation or other
organization agrees to be bound hereunder by the terms of said assignment in the
same manner as the Administrator is bound hereunder. Subject to the foregoing,
this Agreement shall bind any successors or assigns of the parties hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or affect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall be an original, but all of which together shall
constitute but one and the same agreement.
16. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall 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.
17. Limitation of Liability of Owner Trustee and Indenture Trustee. (a)
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by Chase Manhattan Bank Delaware, not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall Chase Manhattan Bank Delaware in its individual capacity or any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
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(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by Citibank, N.A. not in its individual
capacity but solely as Indenture Trustee and in no event shall Citibank, N.A.
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer.
18. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
20. Successor Servicer and Administrator. The Administrator shall
undertake, as promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers pursuant to Section 7.1 of the
Sale and Servicing Agreement, to enforce the provisions of Section 7.2 of the
Sale and Servicing Agreement with respect to the appointment of a Successor
Servicer. Such Successor Servicer shall, upon compliance with the last sentence
of Section 7.2 of the Sale and Servicing Agreement, become the successor
Administrator hereunder; provided, however, that if the Indenture Trustee shall
become such successor Administrator, the Indenture Trustee shall not be required
to perform any obligations or duties or conduct any activities as successor
Administrator that would be prohibited by law and not within the banking and
trust powers of the Indenture Trustee. In such event, the Indenture Trustee may
appoint a sub-administrator to perform such obligations and duties.
21. Nonpetition Covenants. (a) Notwithstanding any prior termination of
this Agreement, the Seller, the Administrator, the Owner Trustee and the
Indenture Trustee shall not, prior to the date which is one year and one day
after the termination of this Agreement with respect to the Issuer, acquiesce,
petition or otherwise invoke or cause the Issuer to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Issuer 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 Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Issuer.
(b) Notwithstanding any prior termination of this Agreement,
the Issuer, the Administrator, the Owner Trustee and the Indenture Trustee shall
not,
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prior to the date which is one year and one day after the termination of this
Agreement with respect to the Seller, acquiesce, petition or otherwise invoke
or cause the Seller to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller 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 Seller or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Seller.
22. The Indenture Trustee in acting hereunder shall be entitled to the
rights, protections and immunities which it is afforded under the Indenture.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
DAIMLER-BENZ VEHICLE OWNER
TRUST 1998-A
By: CHASE MANHATTAN BANK
DELAWARE, not in its individual capacity
but solely as Owner Trustee
By: /s/ X. X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice-President
CITIBANK, N.A.,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice-President
MERCEDES-BENZ CREDIT
CORPORATION, not in its individual
capacity but solely as Administrator
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director, Accounting Services
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EXHIBIT A
POWER OF ATTORNEY
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
KNOW ALL MEN BY THESE PRESENTS, that CHASE MANHATTAN BANK DELAWARE, a
Delaware banking corporation, not in its individual capacity but solely as owner
trustee (the "Owner Trustee") for DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A (the
"Trust"), does hereby make, constitute and appoint MERCEDES-BENZ CREDIT
CORPORATION, as administrator under the Administration Agreement dated as of
November 1, 1998 (the "Administration Agreement"), among the Trust,
Mercedes-Benz Credit Corporation and Citibank, N.A., as Indenture Trustee, as
the same may be amended from time to time, and its agents and attorneys, as
Attorneys-in-Fact to execute on behalf of the Owner Trustee or the Trust all
such documents, reports, filings, instruments, certificates and opinions as it
should be the duty of the Owner Trustee or the Trust to prepare, file or deliver
pursuant to the Related Agreements, or pursuant to Section 5.5 of the Trust
Agreement, including, without limitation, to appear for and represent the Owner
Trustee and the Trust in connection with the preparation, filing and audit of
federal, state and local tax returns pertaining to the Trust, and with full
power to perform any and all acts associated with such returns and audits that
the Owner Trustee could perform, including without limitation, the right to
distribute and receive confidential information, defend and assert positions in
response to audits, initiate and defend litigation, and to execute waivers of
restrictions on assessments of deficiencies, consents to the extension of any
statutory or regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Owner Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Administration Agreement.
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EXECUTED this day of [ ], 1998.
CHASE MANHATTAN BANK
DELAWARE,
not in its individual capacity
but solely as Owner Trustee
By:__________________________
Name:
Title:
A-1
21
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
Before me, the undersigned authority, on this day personally appeared
______________________________, known to me to be the person whose name is
subscribed to the foregoing instruments, and acknowledged to me that he/she
signed the same for the purposes and considerations therein expressed.
Sworn to before me this _____ day of [ ], 1998.
Notary Public - State of Delaware
A-2
