EXHIBIT 3
This PURCHASE AGREEMENT dated as of April 1, 2002, between
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC, a Michigan limited liability company
(the "Seller"), and DAIMLERCHRYSLER RETAIL RECEIVABLES LLC, a Michigan limited
liability company (the "Company").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS the Seller and the Company have entered into an Amended and
Restated Trust Agreement dated as of April 1, 2002, among the Seller, the
Company and Chase Manhattan Bank USA, National Association, as owner trustee (as
amended and supplemented from time to time, the "Trust Agreement"), pursuant to
which the Company has agreed to assume certain obligations with respect to
DaimlerChrysler Auto Trust 2002-A a Delaware business trust (the "Issuer"); and
WHEREAS the Company has agreed to acquire all of the Certificates,
which represent undivided percentage interests in the assets of the Issuer;
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows.
ARTICLE I
Definitions
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Sale and Servicing Agreement dated as of
April 1, 2002 (the "Sale and Servicing Agreement"), between the Issuer and
DaimlerChrysler Services North America LLC, as seller and as servicer, or, if
not defined therein, in the Trust Agreement.
ARTICLE II
Conveyance of Rights to Excess Cash Flow from Reserve Account
Section 2.01. Conveyance of Rights. In consideration of the Company's
delivery to or upon the order of the Seller of approximately $120,076,707.68 on
the Closing Date, (i) the Seller does hereby sell, transfer, assign, set over
and otherwise convey to the Company, without recourse (subject to the
obligations herein), all of the Seller's right, title and interest in and to the
following: (a) any amounts to be released from the Reserve Account from time to
time to the Seller pursuant to the Sale and Servicing Agreement and (b) all
rights with respect to the enforcement of any or all of the foregoing, all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under, and any and
all proceeds of every kind and nature with respect to, any or all of the
foregoing (collectively, the "Rights") and (ii) the Seller shall cause the
Certificates to be issued to the Company.
ARTICLE III
Representations and Warranties
Section 3.01. Representations and Warranties of the Company. The
Company hereby represents and warrants to the Seller as of the date hereof and
as of the Closing Date:
(a) Organization and Good Standing. The Company has been duly organized
and is validly existing as a limited liability company in good standing under
the laws of the State of Michigan, with the power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, the power, authority and legal right to acquire, own, hold and convey the
Rights.
(b) Due Qualification. The Company is duly qualified to do business as
a foreign limited liability company in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business shall require such
qualifications.
(c) Power and Authority. The Company has the power and authority to
execute and deliver this Agreement and to carry out its terms, and the
execution, delivery and performance of this Agreement have been duly authorized
by the Company by all necessary action.
(d) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof will not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the articles of
organization or operating agreement of the Company, or any indenture, agreement
or other instrument to which the Company is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than the Basic Documents); nor violate any law or, to the best of the
Company's knowledge, any order, rule or regulation applicable to the Company of
any court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Company or its
properties.
(e) No Proceedings. There are no proceedings or investigations pending
or, to the Company's best knowledge, threatened, before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Company or its properties: (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Company of its obligations under, or the validity or enforceability of, this
Agreement.
Section 3.02. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Company as of the date hereof and as of
the Closing Date and any Transfer Date:
(a) Organization and Good Standing. The Seller has been duly organized
and is validly existing as a limited liability company in good standing under
the laws of the State of
2
Michigan, with the power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the power, authority and
legal right to convey and assign the Rights.
(b) Due Qualification. The Seller is duly qualified to do business as a
foreign limited liability company in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(c) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and to carry out its terms; the Seller has
duly authorized the sale and assignment of the Rights to the Company by all
necessary action; and the execution, delivery and performance of this Agreement
have been duly authorized by the Seller by all necessary action.
(d) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof will not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the articles of
organization or operating agreement of the Seller, or any indenture, agreement
or other instrument to which the Seller is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than the Basic Documents); nor violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable to the Seller of
any court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Seller or its
properties.
(e) No Proceedings. To the Seller's best knowledge, there are no
proceedings or investigations pending or threatened before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties: (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of, this
Agreement.
ARTICLE IV
Conditions
Section 4.01. Conditions to Obligation of the Company. The obligation
of the Company to purchase the Rights and the Certificates is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct as of the date of
execution of this Agreement and as of the Closing Date with the same effect as
if then made, and the Seller shall have performed all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement to be consummated as of the Closing Date shall be
consummated as of such date.
3
Section 4.02. Conditions to Obligation of the Seller. The obligation of
the Seller to sell the Rights to the Company and cause the Certificates to be
issued to the Company is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The representations and
warranties of the Company hereunder shall be true and correct as of the date of
execution of this Agreement and as of the Closing Date with the same effect as
if then made, and the Company shall have performed all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Purchase Price. On the Closing Date, the Company shall have
delivered to the Seller the purchase price specified in Section 2.01.
ARTICLE V
Covenants
Section 5.01. Legal Existence. (a) During the term of this Agreement
and the Trust Agreement, the Company will keep in full force and effect its
existence, rights and franchises as a limited liability company under the laws
of the jurisdiction of its organization and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Agreement, the Basic Documents and each other instrument or agreement necessary
or appropriate to the proper administration of this Agreement, the Basic
Documents and the transactions contemplated hereby and thereby.
(b) During the term of this Agreement and the Trust Agreement, the
Company shall observe the applicable legal requirements for the recognition of
the Company as a legal entity separate and apart from its Affiliates, including
as follows:
(i) the Company shall maintain records and books of account
separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement, the
Company shall not commingle its assets and funds with those of its
Affiliates;
(iii) the Company shall hold such appropriate meetings of its
members as are necessary to authorize all of the Company's actions
required by law to be authorized by the members thereof, shall keep
minutes of such meetings and observe all other customary formalities
respecting limited liability companies (and any successor Company that
is not a limited liability company shall observe similar procedures in
accordance with its governing documents and applicable law);
(iv) the Company shall at all times hold itself out to the
public under the Company's own name as a legal entity separate and
distinct from its Affiliates; and
(v) all transactions and dealings between the Company and its
Affiliates, including this Agreement, will be conducted on an
arm's-length basis.
4
Section 5.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Company. Any Person (a) into which the Company may be merged
or consolidated, (b) which may result from any merger or consolidation to which
the Company shall be a party or (c) which may succeed to the properties and
assets of the Company substantially as a whole, which Person in any of the
foregoing cases executes an agreement of assumption to perform every obligation
of the Company under this Agreement and the Trust Agreement, shall be the
successor to the Company hereunder and thereunder without the execution or
filing of any document or any further act by any of the parties to this
Agreement or the Trust Agreement; provided, however, that (i) immediately after
giving effect to such transaction, no representation or warranty made pursuant
to Section 3.01 shall have been breached, (ii) the Company shall have delivered
to the Owner Trustee and the Indenture Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption comply with this Section and that all
conditions precedent, if any, provided for in this Agreement relating to such
transaction have been complied with and (iii) the Rating Agency Condition shall
have been satisfied with respect to such transaction. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of assumption
and compliance with clauses (i), (ii) and (iii) above shall be conditions to the
consummation of the transactions referred to in clause (a), (b) or (c) above.
Section 5.03. Limitation on Liability of the Company and Others. The
Company and any director, officer, employee or agent of a member of the Company
may rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Company shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement or under the Trust Agreement, and that in its
opinion may involve it in any expense or liability.
Section 5.04. The Company May Own Notes. The Company may in its
individual or any other capacity become the owner or pledgee of Notes with the
same rights as it would have if it were not the Company, except as expressly
provided herein or in any Basic Document.
Section 5.05. Covenants of the Seller. (a) The Seller hereby agrees to
provide to the Company copies of each notice and certificate the Seller receives
pursuant to the Sale and Servicing Agreement insofar as such notice or
certificate relates to the Rights (including each Servicer's Certificate
delivered for each Payment Date pursuant thereto).
(b) The Seller hereby agrees that it will not, without the prior
written consent of the Company, enter into any amendment to the Sale and
Servicing Agreement or the Trust Agreement.
(c) The Seller shall not, prior to the date which is one year and one
day after the termination of the Sale and Servicing Agreement, acquiesce,
petition or otherwise invoke or cause the Company to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Company under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Company or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Company.
5
Section 5.06. Sale of the Rights by the Company. After the Closing
Date, the Company may sell, transfer and assign the Rights to another Person (a
"Transferee"); provided, that the Indenture Trustee and the Owner Trustee shall
have received an Opinion of Counsel to the effect that such transfer will not
cause the Trust to be characterized as an association (or a publicly traded
partnership) taxable as a corporation for federal income tax purposes or
Michigan income and single business tax purposes. Notwithstanding anything
herein to the contrary, compliance with the proviso of the preceding sentence
shall be a condition to the consummation of the transaction referred to above.
ARTICLE VI
Miscellaneous
Section 6.01. Amendment. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Seller and the
Company, with the consent of the Indenture Trustee, but without the consent of
the Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Seller or the
Company; provided, however, that such amendment will not, as evidenced by an
Opinion of Counsel delivered to the Indenture Trustee, materially and adversely
affect the interest of any Noteholder or Certificateholder. This Agreement may
also be amended by the Seller and the Company with the consent of the Indenture
Trustee, the consent of the Holders of Notes evidencing at least a majority of
the Outstanding Amount of the Notes, the consent of the Holders (as defined in
the Trust Agreement) of Certificates evidencing at least a majority of all the
percentage interests evidenced by the Certificates for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Seller or the
Company; provided, however, that no such amendment shall (i) increase or reduce
in any manner the amount of, or accelerate or delay the timing of, collections
of payments on Receivables or distributions that are required to be made for the
benefit of Noteholders or Certificateholders or (ii) reduce the aforesaid
percentage of the Outstanding Amount of the Notes or the percentage interests
evidenced by the Certificates required to consent to any such amendment, without
the consent of the Holders of all the outstanding Notes and the Holders (as
defined in the Trust Agreement) of all the outstanding Certificates.
Promptly after the execution of any such amendment or consent, the
Seller shall furnish written notification of the substance of such amendment or
consent to each of the Rating Agencies.
Section 6.02. Waivers. No failure or delay on the part of the Company
in exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
Section 6.03. Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Seller,
6
to DaimlerChrysler Services North America LLC, 00000 Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention of Assistant Secretary ((000) 000-0000) and (b) in the
case of the Company, to DaimlerChrysler Retail Receivables LLC, 00000 Xxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention of Assistant Secretary ((248)
512-3990); or as to each of the foregoing, at such other address as shall be
designated by written notice to the other party.
Section 6.04. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Seller, the Company, the Servicer,
the Issuer, the Owner Trustee, the Certificateholders, the Indenture Trustee and
the Noteholders, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 6.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 6.06. Representations of the Seller and the Company. The
respective agreements, representations, warranties and other statements by the
Seller and the Company set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the execution of this
Agreement.
Section 6.07. Headings. The various headings in this Agreement are
included for convenience only and shall not affect the meaning or interpretation
of any provision of this Agreement. References in this Agreement to Section
names or numbers are to such Sections of this Agreement.
Section 6.08. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 6.09. Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
* * * * * * * * * *
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers duly authorized as of the date and year
first above written.
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
By:
-------------------------------------------------
Name:
Title:
DAIMLERCHRYSLER RETAIL RECEIVABLES LLC
By: Chrysler Financial Receivables Corporation,
as a Member
By:
-------------------------------------------------
Name:
Title:
8
