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EXHIBIT 10.1
PURCHASE AGREEMENT
This Purchase Agreement is made as of the 1st day of November, 1996,
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
from commercial vehicle dealers certain retail installment contracts for, and
retail loans evidenced by notes secured by, new and used medium- and heavy-duty
trucks and tractors manufactured by Freightliner Corporation ("Freightliner"),
and used trucks and tractors 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 Pooling and Servicing Agreement (as hereinafter
defined), to the Daimler-Benz Vehicle Trust 1996-A (the "Trust") to be created
thereunder, which Trust will issue 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 Pooling 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.
"Pooling and Servicing Agreement" shall mean the Pooling and Servicing
Agreement dated as of the date hereof by and among Mercedes-Benz Credit
Corporation, in its individual
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capacity and as servicer, the Purchaser, as seller, and Citibank, N.A., as
trustee, as payahead agent and as agent for the holders of the Class A
Certificates and the Class B Certificates.
"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
November __, 1996 by and between Xxxxxxx, Sachs & Co., as representative of the
Underwriters, the Purchaser, as seller, and Daimler-Benz North America
Corporation.
"Underwriters" shall mean the several underwriters listed in Schedule
I to the Underwriting Agreement.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 Purchase and Sale of Receivables.
(a) Sale of Receivables. On the Closing Date, subject to
the terms and conditions of this Agreement, the Seller shall sell, transfer,
assign and otherwise convey to the Purchaser, without recourse, and the
Purchaser shall purchase, all right, title and interest of the Seller, whether
now owned or hereafter acquired, in and to the following: (i) the Receivables,
and all monies due thereunder on or after the Cutoff Date (including any monies
received prior to the Cutoff Date that are due on or after the Cutoff Date and
were not used to reduce the principal balance of the Receivables but excluding
Excess Amounts); (ii) the security interests in the Financed Vehicles granted
by Obligors pursuant to the Receivables; (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; and (vi) 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
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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 Pooling 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 Class A
Certificates and Class B Certificates; and (b) the Underwriting Agreement,
pursuant to which the Purchaser will sell to the Underwriters the Class A
Certificates.
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) 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.
(c) 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.
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(d) 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.
(e) 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
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Seller has full power and authority to sell and assign the property to
be sold and assigned to the Purchaser and has duly authorized such
sale and assignment to the Purchaser by all necessary corporate
action; and the execution, delivery, and performance of this Agreement
have been duly authorized by the Seller by all necessary corporate
action.
(iv) Valid Sale; Binding Obligations. This
Agreement and the Assignment effect a valid sale, transfer, and
assignment of the Receivables and the other property conveyed by the
Seller to the Purchaser hereunder, enforceable against creditors of
and purchasers from the Seller; and this Agreement and the Assignment
constitute legal, valid and binding obligations of the Seller,
enforceable against the Seller in accordance with their terms, except
as enforceability may be limited by bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles.
(v) No Violation. The execution, delivery and
performance by the Seller of this Agreement and the consummation of
the transactions contemplated hereby and the fulfillment of the terms
hereof do not conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse of
time) a default under, the certificate of incorporation or bylaws of
the Seller, or conflict with, or breach any of the terms or provisions
of, or constitute (with or without notice or lapse of time) a default
under, any indenture, agreement, mortgage, deed of trust or other
instrument to which the Seller is a party or by which the Seller is
bound or any of its properties are subject, or result in the creation
or imposition of any lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or
other instrument, or violate any law, order, rule, or regulation,
applicable to the Seller or its properties, of any federal or state
regulatory body, any court, administrative agency, or other
governmental instrumentality having jurisdiction over the Seller or
any of its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or, to the knowledge of the Seller,
threatened, before any court, regulatory body, administrative agency,
or other tribunal or governmental 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.
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(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 Pooling 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 one or more Financed Vehicles 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 fixed 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, and (f) except to the extent any
Receivable may become a Prepaid Receivable, provides for allocation of
payments in accordance with the Actuarial Method.
(ii) Schedule of Receivables. The information set
forth in Exhibit B to this Agreement was true and correct in all
material respects as of the opening of business on the Cutoff Date,
and no selection procedures believed by the Seller to be adverse to
the Certificateholders were utilized in selecting the Receivables.
(iii) Compliance with Law. Each Receivable and the
sale of the related Financed Vehicles 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.
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(iv) Binding Obligation. 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 Vehicle. 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 in each related Financed Vehicle in
favor of the Seller as secured party. Such security interest 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 any 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
each such Financed Vehicle. 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) 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.
(viii) No Liens. To the best of Seller's knowledge,
no liens or claims have been field 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.
(ix) No Default, Repossession. Except for payment
defaults continuing for a period of not more than thirty days 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
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permitting acceleration under the terms of any Receivable has
occurred; and no Financed Vehicle was repossessed on or prior to the
Cutoff Date.
(x) 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 such
Obligor's Financed Vehicle(s).
(xi) 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 by or against the Seller under any
bankruptcy 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.
(xii) 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.
(xiii) All Filings Made. All filings (including,
without limitation, UCC filings) necessary in any jurisdiction to give
the Purchaser a first priority perfected security interest in the
Receivables have been made.
(xiv) Chattel Paper. Each Receivable constitutes
"chattel paper" as defined in the UCC.
(xv) One Original. There is only one original
executed copy of each Receivable.
(xvi) Principal Balance. Each Receivable had a
remaining Principal Balance as of the Cutoff Date of not more than
$7,380,657.16 and not less than $527.08.
(xvii) 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 was bankrupt.
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(xviii) New and Used Vehicles. Approximately 77.9%
of the aggregate Principal Balance of the Receivables, constituting
51.5% of the Receivables as of the Cutoff Date relate to new
Commercial Vehicles, and approximately 22.1% of the aggregate
Principal Balance of the Receivables, constituting 48.5% of the
Receivables as of the Cutoff Date relate to used Commercial Vehicles.
(xix) Origination. Each receivable has an
origination date prior to November 1, 1996.
(xx) Maturity of Receivables. Each Receivable had
a remaining maturity, as of the Cutoff Date, of not more than 80
months and an original maturity of not more than 84 months.
(xxi) Annual Percentage Rate. Each Receivable has
an APR of at least 6.90% and not more than 21.04%.
(xxii) Payments. No Receivable had a payment that
was more than 60 days overdue as of the Cutoff Date.
(xxiii) Billing Address. The Obligor under each
Receivable had a current billing address in the United States as of
the Cutoff Date.
(xxiv) Concentration Limit. No single Obligor
accounts for more than 2.0%, by Principal Balance of Receivables, of
the Original Pool Balance.
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.
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(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 Pooling 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.
(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 Pooling and Servicing Agreement, the Pooling and Servicing
Agreement shall govern:
5.1 Protection of Right, Title and Interest.
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(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 Section
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.
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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), (vii), (ix) and
(xvii), any breach or failure which would have occurred if such warranty had
not been made to the best knowledge of the Seller. Unless the breach or
failure shall have been cured by the last day of the Collection Period which
includes the 60th day after the date on which the Seller becomes aware of, or
receives written notice from the Purchaser of, such breach or failure, the
Seller shall repurchase from the Purchaser any Receivable, the interests of the
Purchaser in which are materially and adversely affected by the breach or
failure, on the Distribution Date immediately following such Collection Period
but with effect from the first day of the Collection Period in which such
Distribution 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 Pooling and Servicing Agreement, sell the Receivables to the
Trust and assign its rights under this Agreement to the Trustee for the benefit
of the 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.
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(b) The Seller will cooperate with the Purchaser and KPMG
Peat Marwick in making available all information and taking all steps
reasonably necessary to permit such accountants to complete the review set
forth in Section 6.6(a) above and to deliver the letters required of them under
the Underwriting Agreement.
(c) KPMG Peat Marwick will deliver to the Purchaser a
letter, dated the date of the Prospectus, in the form previously agreed to by
the Seller and the Purchaser, with respect to the financial and statistical
information contained in the Prospectus under the caption "Delinquency and Loss
Experience" and with respect to such other information as may be agreed in the
form of letter.
6.7 Waivers. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or further exercise thereof
or the exercise of any other power, right or remedy.
6.8 Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered, sent by telecopier, sent
by courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been given upon receipt to either party at its address shown in
the opening portion of this Agreement or at such other address as may be
designated by a party by notice to the other party.
6.9 Costs and Expenses. The Seller will pay all expenses incident
to the performance of its obligations under this Agreement and the Seller
agrees to pay all reasonable out-of-pocket 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 Pooling 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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14
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
---------------------------------------
Name:
Title
DAIMLER-BENZ VEHICLE RECEIVABLES CORPORATION
By
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Name:
Title
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15
EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as
of November 1, 1996, 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
(including any monies received prior to the Cutoff Date that are due on or
after the Cutoff Date and were not used to reduce the Principal Balance of the
Receivables but excluding Excess Amounts); (ii) the security interests in the
Financed Vehicles granted by Obligors pursuant to the Receivables; (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 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; and (vi) all proceeds of any
and all of the foregoing. The foregoing sale does not constitute and is not
intended to result in any assumption by the Purchaser of any obligation of the
undersigned to the Obligors, insurers or any other person in connection with
the Receivables, Receivable Files, any insurance policies or any agreement or
instrument relating to any of them.
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, 1996.
MERCEDES-BENZ CREDIT CORPORATION
By
-------------------------------------
Name:
Title
16
Exhibit B
Schedule of Receivables
DELIVERED TO PURCHASER
AT CLOSING
