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Exhibit 1.1
DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A
5.27125% CLASS A-1 ASSET BACKED NOTES
5.23% CLASS A-2 ASSET BACKED NOTES
5.16% CLASS A-3 ASSET BACKED NOTES
5.22% CLASS A-4 ASSET BACKED NOTES
DAIMLER-BENZ VEHICLE RECEIVABLES CORPORATION
(Company)
MERCEDES-BENZ CREDIT CORPORATION
(Servicer)
December 3, 1998
NOTE UNDERWRITING AGREEMENT
Chase Securities Inc., and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
as Representatives of the
Several Underwriters named
in Schedule I hereto (the "Representatives")
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Daimler-Benz Vehicle Receivables Corporation, a Delaware
corporation (the "Company" or the "Seller"), proposes to sell to the several
Underwriters named in Schedule I hereto (the "Underwriters") $360,000,000
aggregate principal amount of 5.27125% Class A-1 Asset Backed Notes (the "Class
A-1 Notes"), $508,000,000 aggregate principal amount of 5.23% Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), $440,000,000 aggregate principal amount of
5.16% Class A-3 Asset Backed Notes (the "Class A-3 Notes") and $241,800,000
aggregate principal amount of 5.22% Class A-4 Asset Backed Notes (the "Class
A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, the "Notes") to be issued by Daimler-Benz Vehicle Owner Trust
1998-A (the "Trust"). Each Note will be secured by the Receivables (as
hereinafter defined) and certain other property
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of the Trust. The Notes will be issued in an aggregate principal amount of
$1,549,800,000, which is equal to approximately 95% of the aggregate principal
balance of the Receivables as of the Cutoff Date.
The Notes will be issued pursuant to the Indenture to be dated as
of November 1, 1998 (the "Indenture") by and between the Trust and Citibank,
N.A., as indenture trustee (the "Indenture Trustee"). Simultaneously with the
issuance and sale of the Notes, the Trust will issue $81,654,551.40 principal
balance of 5.62% Class B Asset Backed Certificates (the "Certificates"),
payments in respect of which are, to the extent specified in (i) the Indenture,
(ii) the Sale and Servicing Agreement to be dated as of November 1, 1998 (the
"Sale and Servicing Agreement") among the Trust, the Seller and Mercedes-Benz
Credit Corporation, as servicer (the "Servicer"), and (iii) the Trust Agreement
(as hereinafter defined), subordinated to the rights of the holders of the
Notes. The Certificates will be issued pursuant to the Amended and Restated
Trust Agreement (the "Trust Agreement") to be dated as of November 1, 1998, by
and between the Seller, as depositor, and Chase Manhattan Bank Delaware, as
owner trustee (the "Owner Trustee"). The Certificates will evidence an undivided
ownership interest of approximately 5% in the Trust, payments in respect of
which are, to the extent specified in the Sale and Servicing Agreement,
subordinated to the rights of the holders of the Notes.
The assets of the Trust include, among other things, a pool of
retail installment contracts for and retail loans evidenced by notes secured by
new and used automobiles and new and used medium- and heavy-duty trucks and
tractors (the "Receivables") and certain monies due thereunder on or after
November 1, 1998 (the "Cutoff Date"), such Receivables to be sold to the Trust
by the Company and to be serviced for the Trust by the Servicer.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
of the Commission thereunder (the "Rules and Regulations"), a registration
statement, including a prospectus, relating to the Notes. Any preliminary
prospectus
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included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the Rules and Regulations is referred to in this
Agreement as the "Preliminary Prospectus." The registration statement as amended
at the time when it shall become effective, or, if a post-effective amendment is
filed with respect thereto, as amended by such post-effective amendment at the
time of its effectiveness, including in each case information (if any) deemed to
be part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Act, is referred to in this Agreement as the "Registration
Statement," and the prospectus in the form used to confirm sales of Notes is
referred to in this Agreement as the "Prospectus."
The terms which follow, when used in this Agreement, shall have
the meanings indicated. "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Rule 424" and
"Rule 430A" refer to such rules under the Act. To the extent not defined herein,
capitalized terms used herein have the meanings assigned to such terms in the
Sale and Servicing Agreement.
The Company agrees with the Underwriters as follows:
1. The Company agrees to sell and deliver the Notes to the
several Underwriters as hereinafter provided, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase, severally and not
jointly, from the Company the respective principal amount of Notes set forth
opposite such Underwriter's name in Schedule I hereto. The Class A-1 Notes are
to be purchased at the purchase price of 100.0000000% of the aggregate principal
amount thereof, the Class A-2 Notes are to be purchased at the purchase price of
99.9910190% of the aggregate principal amount thereof, the Class A-3 Notes are
to be purchased at the purchase price of 99.9886984% of the aggregate principal
amount thereof and the Class A-4 Notes are to be purchased at the purchase price
of 99.9897320% of the aggregate principal amount thereof.
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2. The Company understands that the Underwriters intend (a) to
make a public offering of their respective portions of the Notes as soon after
the Registration Statement and this Agreement have become effective as in the
judgment of the Representatives is advisable and (b) initially to offer the
Notes upon the terms set forth in the Prospectus.
3. Payment for Notes shall be made to the Company or to its order
by wire transfer of same day funds at the office of ▇▇▇▇▇▇▇, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 9:00 A.M., New
York City time, on December 10, 1998 (the "Closing Date"), or at such other time
on the same or such other date, not later than the fifth Business Day
thereafter, as the Representatives and the Company may agree upon in writing. As
used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City.
Payment for the Notes shall be made against delivery to the
Representatives for the respective accounts of the several Underwriters of the
Notes registered in the name of Cede & Co. as nominee of The Depository Trust
Company and in such denominations, as permitted by the Sale and Servicing
Agreement, as the Representatives shall request in writing not later than two
full Business Days prior to the Closing Date, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Notes duly paid by the
Company. The certificates for the Notes will be made available for inspection
and packaging by the Representatives at the office of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ not later than
1:00 P.M., New York City time, on the Business Day prior to the Closing Date.
4. The Company represents and warrants to and
agrees with each Underwriter that:
(a) The Registration Statement on Form
S-1 (no. 333-64671), including the Prospectus and such amendments thereto as may
have been required on or prior to the date hereof, relating to the Notes, has
been filed with the Commission and such Registration Statement as amended has
become effective. With respect to the Regis-
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tration Statement, the conditions to the use of a registration statement on
Form S-1 under the Act, as set forth in the General Instructions to Form S-1,
have been satisfied by the Company;
(b) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission, and on the Effective Date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all respects to the
requirements of the Act and the Rules and Regulations, and did not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and, on the Closing Date, the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents will include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished to
the Company in writing by any Underwriter through the Representatives expressly
for use therein;
(c) The computer tape with respect to the
Receivables to be sold to the Trust created as of the Cutoff Date (the "Computer
Tape"), and made available to the Representatives by the Company, was complete
and accurate in all material respects as of the date thereof;
(d) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company;
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(e) The Notes have been duly authorized,
and, when issued and delivered pursuant to the Indenture, duly authenticated by
the Indenture Trustee and paid for by the Underwriters in accordance with the
terms of this Agreement, will be duly and validly issued, authenticated and
delivered and entitled to the benefits provided by the Indenture; each of the
Sale and Servicing Agreement, the Trust Agreement, the Purchase Agreement and
this Agreement have been duly authorized by the Company and, when executed and
delivered by the Company and the other parties thereto (in the case of the Sale
and Servicing Agreement, the Trust Agreement and the Purchase Agreement), each
of the Sale and Servicing Agreement, the Trust Agreement, the Purchase Agreement
and this Agreement will constitute a valid and binding agreement of the
Company; and the Notes, the Indenture, the Sale and Servicing Agreement, the
Trust Agreement and the Purchase Agreement will conform to the descriptions
thereof in the Prospectus in all material respects;
(f) No consent, approval, authorization
or order of, or filing with, any court or governmental agency or body is
required to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement, the Sale and Servicing Agreement,
the Trust Agreement or the Purchase Agreement except such as have been obtained
and made under the Act, such as may be required under state securities laws and
the filing of any financing statements required to perfect the Trust's interest
in the Receivables;
(g) The Company is not in violation of its
Certificate of Incorporation or By-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its properties
is bound which would have a material adverse effect on the transactions
contemplated herein or in the Sale and Servicing Agreement, the Trust Agreement
and the Purchase Agreement. The execution, delivery and performance of this
Agreement, the Sale and Servicing Agreement, the Trust Agreement and the
Purchase Agreement and the issuance and sale of the Notes and compliance with
the terms and provisions hereof and thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any stat-
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ute, rule, regulation or order of any governmental agency or body or any court
having jurisdiction over the Company or any of its properties or any agreement
or instrument to which the Company is a party or by which the Company is bound
or to which any of the properties of the Company is subject, or the Certificate
of Incorporation or By-laws of the Company; and the Company has full power and
authority to authorize and sell, and establish, the Trust that will issue the
Notes as contemplated by this Agreement and to enter into this Agreement, the
Sale and Servicing Agreement, the Trust Agreement and the Purchase Agreement and
consummate the transactions contemplated hereby and thereby;
(h) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company is or may be a party
or to which any property of the Company is or may be the subject that, if
determined adversely to the Company, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the general
affairs, business, prospects, management, financial position, stockholders'
equity or results of operations of the Company or that would reasonably be
expected to materially adversely affect the interests of the holders of the
Notes; and there are no contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be described
in the Registration Statement or the Prospectus which are not filed or described
as required; and
(i) By assignment and delivery of each of
the Receivables to the Trust as of the Closing Date, the Company will transfer
all of its right, title and interest in, to and under the Receivables to the
Trust, subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
5. The Company covenants and agrees with the
several Underwriters that:
(a) Prior to the termination of the
offering of the Notes, the Company will not file or cause to be filed any
amendment of the Registration Statement or supplement to the Prospectus which
shall be reasonably disapproved of promptly by the Representatives after
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reasonable notice thereof. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Prospectus is otherwise required under Rule 424(b), the Company
will cause the Prospectus, properly completed, and any supplement thereto, to be
filed with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Underwriters of such timely filing. The Company will promptly advise the
Underwriters (i) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when,
prior to termination of the offering of the Notes, any amendment to the
Registration Statement shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (iv) of the receipt by the Company
of notification with respect to the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of notification with respect to the suspension of the qualification of
the Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its reasonable best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof;
(b) The Company will deliver, at its expense, to the
Representatives, two signed copies of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits, and to each
other Underwriter a conformed copy of the Registration Statement and each
amendment thereto, in each case without exhibits, and, during the period
mentioned in paragraph (e) below, to each of the Underwriters as many copies of
the Prospectus (including all amendments and supplements thereto) as the
Representatives may reasonably request. The Company will furnish or cause to be
furnished to the Representatives copies of all reports on Form SR required by
Rule 463 under the Act;
(c) If (i) during such period of time
after the first date of the public offering of the Notes as in the opinion of
counsel for the Underwriters a
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Prospectus relating to the Notes is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or (ii) it is necessary to amend or supplement
the Prospectus to comply with the applicable law, then the Company will
forthwith prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses the Representatives
will furnish to the Company) to which Notes may have been sold by the
Representatives on behalf of the Underwriters and upon request by the
Representatives to any other dealers identified by the Representatives, such
amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances under which they were made, be misleading or so that
the Prospectus will comply with the law;
(d) The Company will endeavor to qualify
the Notes for offer and sale under the securities or "Blue Sky" laws of such
jurisdictions as the Representatives shall reasonably request and will continue
such qualification in effect so long as reasonably required for distribution of
the Notes and will pay all fees and expenses (including fees and disbursements
of counsel to the Underwriters) reasonably incurred in connection with such
qualification and in connection with the determination of the eligibility of
the Notes for investment under the laws of such jurisdictions as the
Representatives may designate; provided, however, that the Company shall not be
obligated to qualify to do business in any jurisdiction in which it is not
currently so qualified; and provided further that the Company shall not be
required to file a general consent to service of process in any jurisdiction;
(e) On or before March 31, 2000, the
Company will cause the Trust to make generally available to Noteholders and to
the Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of the
Trust occurring after the Effective Date of the Registration Statement, which
shall satisfy the
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provisions of Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder;
(f) For the period from the date of this
Agreement until the retirement of the Notes the Servicer will furnish to the
Representatives (x) copies of each certificate and the annual statements of
compliance delivered to the Owner Trustee and the Indenture Trustee
pursuant to Section 3.10 of the Sale and Servicing Agreement and the annual
independent certified public accountant's servicing reports furnished to the
Owner Trustee and the Indenture Trustee pursuant to Section 3.11 of the Sale and
Servicing Agreement, by first-class mail as soon as practicable after such
statements and reports are furnished to the Owner Trustee and the Indenture
Trustee and (y) copies of each amendment to the Sale and Servicing Agreement,
and on each Determination Date or as soon thereafter as practicable, the
Servicer shall give notice substantially in the form of Schedule II hereto by
telex or telecopy to the Representatives of the Pool Factor as of the related
Record Date;
(g) During the period beginning on the date hereof
and continuing to and including the Business Day following the Closing Date, the
Company will not offer, sell, contract to sell or otherwise dispose of any
securities of or guaranteed by the Company which are sub- stantially similar to
the Notes without the prior written consent of the Representatives;
(h) The Company will register the Notes pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or prior
to December 1, 1998;
(i) To the extent, if any, that the rating provided
with respect to the Notes by the rating agency or rating agencies rating the
Notes (the "Rating Agency") is conditional upon the furnishing of documents or
the taking of any other action by the Company agreed upon on or prior to the
Closing Date, the Company shall use its reasonable best efforts to furnish such
documents and take any such other action; and
(j) So long as any of the Notes are outstanding, the
Company will furnish to the Representatives by first class mail (i) as soon as
practical after the end of the Company's fiscal year, copies of all docu-
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ments, records and financial statements required to be distributed to
Noteholders (including "Note Owners", as such term is defined in the Indenture)
or filed with the Commission pursuant to the Exchange Act, or any order of the
Commission thereunder and (ii) from time to time, any other information
concerning the Company filed with any government or regulatory authority or
national securities exchange which is otherwise publicly available, as the
Representatives may reasonably request.
6. The Company will pay all costs and expenses incident to the
performance of its obligations under this Agreement, including, without limiting
the generality of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the Notes, (ii)
incident to the preparation, printing and filing under the Act of the
Registration Statement, the Prospectus and any preliminary prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification and determination of
eligibility for investment of the Notes under the laws of such jurisdictions as
the Underwriters may designate (including fees and disbursements of counsel for
the Underwriters with respect thereto), (iv) related to any filing with the
National Association of Securities Dealers, Inc., (v) in connection with the
printing (including word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Sale and Servicing Agreement, the Trust Agreement,
the Purchase Agreement and any Blue Sky Memorandum and the furnishing to Under-
writers and dealers of copies of the Registration Statement and the Prospectus
as herein provided, (vi) the fees and disbursements of the Company's counsel and
accountants and the Underwriters' counsel fees and disbursements, and (vii) any
fees and expenses payable to the Rating Agencies in connection with the rating
of the Notes. Notwithstanding the foregoing, the Underwriters have agreed to
reimburse the Company for legal fees and expenses of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, not to exceed $300,000, incurred by the Company in
connection with the issuance and distribution of the Notes.
7. The obligations of the several Underwriters to purchase and
pay for the Notes will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the state-
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ments of officers of the Company made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) At the time this Agreement is executed and
delivered by the Company and at the Closing Date, KPMG Peat Marwick shall have
furnished to the Representatives letters dated, respectively, as of the date of
this Agreement and as of the Closing Date substantially in the forms of the
drafts to which the Representatives previously agreed.
(b) The Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the Rules and Regulations and in accordance with
Section 5(a) of this Agreement; no stop order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or, to the knowledge of the Company, threat-
ened by the Commission; and all requests for additional information from the
Commission with respect to the Registration Statement shall have been complied
with to the satisfaction of the Representatives.
(c) The Representatives shall have received an
officer's certificate, dated the Closing Date, signed by the Chairman of the
Board, the President, or any Vice President and by a principal financial or ac-
counting officer of the Company representing and warranting that, as of the
Closing Date, except to the extent that they relate expressly to another date in
which case they will be true and correct as of such date on the Closing Date,
the representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the best of their knowledge, are contemplated by the
Commission.
(d) Subsequent to the execution and
delivery of this Agreement, there shall not have occurred (i) any change, or any
development involving a prospec-
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tive change, in or affecting particularly the business or properties of the
Trust, the Company, Daimler-Benz North America Corporation ("DBNA") or the
Servicer which, in the judgment of the Representatives, materially impairs the
investment quality of the Notes or makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Notes or (ii) any
downgrading in the rating of any debt securities of DBNA or any of its direct or
indirect subsidiaries by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any such debt securities (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating).
(e) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special
counsel to the Company, MBCC, the Servicer and DBNA, shall have furnished to the
Representatives their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware with full corporate power and authority to own
its properties and conduct its business as described in the Prospectus.
(ii) MBCC has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with full corporate power and authority to own its prop-
erties and conduct its business as described in the Prospectus.
(iii) DBNA has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with full corporate power and authority to own its prop-
erties and conduct its business as described in the Prospectus, and is
duly qualified to transact business and is in good standing in the
State of New York.
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(iv) This Agreement, the Sale and Servicing
Agreement, the Administration Agreement, the Trust Agreement and the
Purchase Agreement have been duly authorized, executed and delivered
by, and each constitutes a valid and binding obligation of each of the
Company, MBCC and the Servicer, as applicable, enforceable against each
of the Company, MBCC and the Servicer, as applicable, in accordance
with its terms.
(v) The Servicing Guaranty Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and
binding obligation of, DBNA, enforceable against DBNA in accordance
with its terms.
(vi) This Agreement has been duly authorized,
executed and delivered by each of the Company and DBNA.
(vii) Neither the execution, delivery and performance
of this Agreement, the Sale and Servicing Agreement, the Trust
Agreement, the Administration Agreement and the Purchase Agreement by
the Company, MBCC or DBNA, as applicable, nor the execution, delivery
and performance of the Servicing Guaranty Agreement by DBNA, nor the
execution and delivery of the Indenture by the parties thereto will
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
properties or assets of the Company, MBCC or DBNA pursuant to the terms
of the Certificate of Incorporation or the By-Laws of the Company,
MBCC or DBNA, any statute, rule or regulation or, to the best of such
counsel's knowledge, any order of any governmental agency or body or
any court having jurisdiction over the Company, MBCC or DBNA, or any
of their respective properties or any agreement or instrument known to
such counsel to which the Company, MBCC or DBNA, is a party or by which
any of them may be bound or to which any of their properties may be
subject.
(viii) To the best of such counsel's knowledge, no
authorization, approval or consent of
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any court or governmental agency or authority is required by law in
connection with the execution, delivery and performance by the
Company, MBCC, DBNA or the Servicer, as applicable, of this Agreement,
the Sale and Servicing Agreement, the Trust Agreement, the
Administration Agreement or the Purchase Agreement, or the execution,
delivery or performance by DBNA of the Servicing Guaranty Agreement,
and the execution and delivery by the parties thereto of the
Indenture, except such as may be required under the Act or the Rules
and Regulations and state securities laws, and except for such
authorizations, approvals or consents (specified in such opinion) as
are in full force and effect as of the Closing Date.
(ix) The Notes have been duly authorized and, when
executed and authenticated by the Indenture Trustee in accordance with
the Indenture and delivered and paid for pursuant to this Agreement,
will be validly issued and outstanding and entitled to the benefits
provided by the Indenture.
(x) Although they do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (xviii) of this Section 7(e),
they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to the Closing Date (other than the financial statements
and related schedules therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as
of its date, the Prospectus or any further amendment or supplement
thereto made by the Company or DBNA prior to the Closing Date (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as
of the Closing Date, either the Registration
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16
Statement or the Prospectus or any further amendment or supplement
thereto made by the Company or DBNA prior to the Closing Date (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and they do
not know of any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus which
are not filed or described as required.
(xi) Such counsel does not know of any contract or
other document of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which is not filed or described as
required.
(xii) To the best of such counsel's knowledge, there
are no legal or governmental proceedings pending or threatened to
which DBNA is a party or of which any property of DBNA is subject, (A)
that are required to be disclosed in the Registration Statement or
(B)(1) that assert the invalidity of all or part of this Agreement,
the Sale and Servicing Agreement, the Servicing Guaranty Agreement or
the Purchase Agreement, (2) that seek to prevent the issuance of the
Notes, (3) that could materially and adversely affect DBNA's
obligations under this Agreement or the Servicing Guaranty Agreement or
(4) that seek to affect adversely the federal or state income tax
attributes of the Notes.
(xiii) MBCC has full power and authority to sell and
assign the property to be sold and assigned to the Company pursuant to
the Purchase Agreement and has duly authorized such sale and assignment
to the Company by all necessary corporate action.
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(xiv) The Company has full power and authority to
sell and assign the property to be sold and assigned to and deposited
with the Owner Trustee as part of the Trust pursuant to the Sale and
Servicing Agreement and has duly authorized such sale and assignment to
the Trust by all necessary corporate action.
(xv) Such counsel knows of no claim by or on behalf
of any third party to the effect that, immediately prior to the
transfer of Receivables by MBCC pursuant to the Purchase Agreement, any
person other than MBCC was the sole owner of any right, title or
interest in the Receivables and the other property to be transferred by
it to the Company.
(xvi) To the best of such counsel's knowledge, the
Receivables are "chattel paper" as defined in the UCC.
(xvii) All filings necessary under the Uniform
Commercial Code as in effect in the State of New York (the "UCC") or
the State of Delaware (the "DE-UCC") or the State of Connecticut (the
"CT-UCC") to perfect both the transfer of the Receivables and the
proceeds thereof (within the meaning of Section 9-306 of the UCC or
the DE-UCC or the CT-UCC, whichever may be applicable (the
"Applicable UCC")) by MBCC to the Company pursuant to the Purchase
Agreement and the transfer of the Receivables and the proceeds
thereof (within the meaning of Section 9-306 of the Applicable UCC)
by the Company to the Trust pursuant to the Sale and Servicing
Agreement have been made and, provided that neither MBCC nor the
Company relocates its chief executive office in a state other than
Connecticut or Delaware, respectively, the Indenture Trustee
maintains the list of Receivables for inspection by interested
parties, and no administrative errors are made by state or local
agencies affecting perfection, no other filings (other than the
filing of continuation statements) need be made to maintain the
perfection of the transfer of the Receivables and the proceeds thereof
(within the meaning of Section 9-306 of the Applicable UCC) either to
the Company pursuant to the Purchase Agreement or to the Trust
pursuant to the Sale and Servicing Agreement.
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(xviii) The statements in the Registration Statement
and the Prospectus under the headings "ERISA Considerations,"
"Prospectus Summary -- Legal Investment" and "Certain Legal Aspects of
the Receivables," to the extent they constitute descriptions of
matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are correct in all material
respects.
(xix) The Trust Agreement is not required to be
qualified under the Trust Indenture Act, the Indenture has been duly
qualified under the Trust Indenture Act of 1939, and the Trust is not
required to be registered as an "investment company" under the
Investment Company Act of 1940, as amended.
(xx) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the best of such
counsel's knowledge, threatened by the Commission; the Registration
Statement and the Prospectus and any further amendments and
supplements thereto made by the Company prior to the Closing Date
(other than the financial statements and related schedules therein or
omitted therefrom, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the Rules and Regulations.
(xxi) The Notes, this Agreement, the Indenture, the
Sale and Servicing Agreement, the Trust Agreement, the Servicing
Guaranty Agreement, the Administration Agreement and the Purchase
Agreement each conform in all material respects with the descriptions
thereof contained in the Registration Statement and the Prospectus.
Such opinion may be made subject to the
qualifications that the enforceability of the terms of the Indenture, the Sale
and Servicing Agreement, the Trust Agreement, the Purchase Agreement, the
Administration Agreement and the Servicing Guaranty Agreement may be subject to
bankruptcy, insolvency, reorganization,
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moratorium or other similar laws now or hereafter in effect relating to
creditors' rights, and the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(f) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have furnished
their written opinion, dated the Closing Date, with respect to the
characterization of the transfer of the Receivables by the Servicer to the
Company and from the Company to the Trust and such opinion shall be in
substantially the form previously discussed with the Representatives and their
counsel and in any event satisfactory in form and in substance to the
Representatives and their counsel.
(g) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special
tax counsel to the Company, shall have furnished to the Representatives their
written opinion, dated the Closing Date, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Trust will not be classified as an
association or publicly traded partnership taxable as a corporation for
federal income tax purposes and for federal income tax purposes (a) if
(1) the Certificates, (2) the Seller's right to receive interest and
other income on funds on deposit in the Reserve Accounts in excess of
the Specified Class A Reserve Balance and the Specified Class B Reserve
Balance pursuant to Section 4.7(b) of the Sale and Servicing Agreement
(the "Reserve Accounts Income"), (3) the excess principal amount of the
Reserve Account Property pursuant to Section 4.7(d) of the Sale and
Servicing Agreement (the "Excess Reserve Principal") and (4) the
Seller's right to receive the remaining Reserve Account Property upon
termination of the Sale and Servicing Agreement pursuant to Section
4.7(f) of the Sale and Servicing Agreement (the "Reserve Accounts
Residual") are held by more than one person, the Trust will be treated
as a partnership and not as an association or a publicly traded
partnership taxable as a corporation, and (b) if (1) the Certificates,
(2) the Reserve Accounts Income, (3) the Excess Reserve Principal and
(4) the Reserve Accounts Residual are held solely by the
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Seller, the Trust will either be ignored as an entity separate from
such Seller or treated as a grantor trust under Subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as amended.
(ii) The Notes will be characterized as
debt for federal income tax purposes.
(iii) The Trust will not be subject to New York State
income, franchise or other taxes measured by income, profits, capital,
or receipts (other than sales, excise, or ad valorem taxes that might
be imposed upon the sale of a Financed Vehicle acquired upon default of
a Receivable).
(iv) Note Owners who would not otherwise be subject
to tax imposed by the State of New York will not be subject to New York
State income or franchise taxes with respect to interest or other
amounts which are paid to or accrued by such Note Owners solely as a
result of such Note Owners' beneficial ownership of a Note.
(v) The statements in the Registration Statement and
Prospectus under the headings "Certain Federal Income Tax
Consequences," to the extent that they constitute descriptions of
matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are correct in all material
respects.
(h) ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special Illinois tax
counsel to the Company shall have furnished to the Representatives their written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Trust will not be subject to tax under the
Illinois Income Tax Act (the "IITA"), the Illinois Franchise Tax or,
assuming that the Trust is not treated as a partnership for federal
income tax purposes, the personal property replacement income tax and
the Trust will not be subject to other Illinois taxes measured by
income, capital, profits or receipts (other than sales, excise, or ad
valorem taxes that might be imposed upon the sale of a vehicle
acquired upon default of a Receivable) and
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21
the Notes will be characterized as debt for Illinois income tax
purposes.
(ii) Note Owners who would not otherwise be subject
to tax under the IITA or the Illinois Franchise Tax will not be subject
to Illinois income or franchise taxes with respect to interest or other
amounts paid to or accrued by such Note Owners solely as a result of
such Note Owners' beneficial ownership of a Note.
(i) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., special
Texas tax counsel to the Company shall have furnished to the Representatives
their written opinion, dated the Closing Date, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Trust will not be subject to Texas franchise
tax or other Texas taxes measured by income, capital, profits or
receipts (other than sales, excise, or ad valorem taxes that might be
imposed upon the sale of a vehicle acquired upon default of a
Receivable) and the Notes will be characterized as debt for Texas
income tax purposes.
(ii) Note Owners who would not otherwise be subject
to tax in Texas will not be subject to Texas income or franchise taxes
with respect to interest or other amounts paid to or accrued by such
Note Owners solely as a result of such Note Owners' beneficial
ownership of a Note.
(j) Day, ▇▇▇▇▇ & ▇▇▇▇▇▇, special Connecticut
tax counsel to the Company, shall have furnished to the Representatives their
written opinion, dated the Closing Date, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Trust will not be subject to Connecticut
income, franchise or other taxes measured by income, profits, capital,
or receipts (other than sales, excise, or ad valorem taxes that might
be imposed upon the sale of a vehicle acquired upon default of a
Receivable) and the Notes will be characterized as debt for Connecticut
income tax purposes.
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22
(ii) Note Owners who would not otherwise be subject
to tax in Connecticut will not be subject to Connecticut income or
franchise taxes with respect to interest or other amounts paid to or
accrued by such Note Owners solely as a result of such Note Owners'
beneficial ownership of a Note (other than such Note Owners' share of
sales, excise, or ad valorem taxes that might be imposed upon the sale
of a vehicle acquired upon default of a Receivable).
(k) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, special Georgia
tax counsel to the Company, shall have furnished to the Representatives their
written opinion, dated the Closing Date, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Trust will not be subject to Georgia income,
franchise or other taxes measured by income, profits, capital, or
receipts (other than sales, excise, or ad valorem taxes that might be
imposed upon the sale of a vehicle acquired upon default of a
Receivable) and the Notes will be characterized as debt for Georgia
income tax purposes.
(ii) Note Owners who would not otherwise be subject
to tax in Georgia will not be subject to Georgia income or franchise
taxes with respect to interest or other amounts paid to or accrued by
such Note Owners solely as a result of such Note Owners' beneficial
ownership of a Note (other than such Note Owners' share of sales,
excise, or ad valorem taxes that might be imposed upon the sale of a
vehicle acquired upon default of a Receivable).
(l) ▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel
of MBCC, shall have furnished to the Representatives his written opinion, dated
the Closing Date, in form and substance satisfactory to the Representatives, to
the effect that:
(i) MBCC has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with full corporate power and authority to own its prop-
erties and conduct its business as described in the Prospectus, and is
duly qualified to transact busi-
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23
ness and is in good standing in each jurisdiction in which the conduct
of its business or the ownership of its property requires such
qualification except where the failure to be so qualified or in good
standing would not have a material adverse effect on MBCC.
(ii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware with full corporate power and authority to own
its properties and conduct its business as described in the
Prospectus, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification except
where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company.
(iii) The execution, delivery and performance of the
Sale and Servicing Agreement, the Administration Agreement and the
Purchase Agreement by MBCC or the Trust Agreement and the Indenture by
the parties thereto will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any of the properties or assets of MBCC pursuant to the terms of the
Certificate of Incorporation or the By-Laws of MBCC, any statute,
rule, regulation or order of any governmental agency or body or any
court having jurisdiction over MBCC or any of its properties or any
agreement or instrument to which MBCC is a party or by which MBCC or
any of its properties is bound.
(iv) No authorization, approval or consent of any
court or governmental agency or authority is necessary in connection
with the execution, delivery and performance by MBCC of the Sale and
Servicing Agreement, the Administration Agreement or the Purchase
Agreement, or by the parties thereto of the Trust Agreement and the
Indenture, except such as may be required under the Act or the Rules
and Regulations and state securities laws, and except for such
authorizations, approvals or consents
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24
(specified in such opinion) as are in full force and effect as of the
latest Effective Date and the Closing Date.
(v) There are no legal or governmental
proceedings pending to which MBCC is a party or of which any property
of MBCC is the subject, and no such proceedings are known by such
counsel to be threatened or contemplated by governmental authorities
or threatened by others, (A) that are required to be disclosed in the
Registration Statement or (B)(1) asserting the invalidity of all or
part of the Sale and Servicing Agreement, the Administration
Agreement, the Trust Agreement, the Indenture or the Purchase
Agreement, (2) seeking to prevent the issuance of the Notes, (3) that
could materially and adversely affect MBCC's obligations under the
Purchase Agreement, the Administration Agreement or the Sale and
Servicing Agreement, or (4) seeking to affect adversely the federal or
state income tax attributes of the Notes.
(vi) There are no legal or governmental proceedings
pending to which the Company is a party or of which any property of the
Company is the subject, and no such proceedings are known by such
counsel to be threatened or contemplated by govern mental authorities
or threatened by others, (A) that are required to be disclosed in the
Registration Statement or (B)(1) asserting the invalidity of all or
part of the Sale and Servicing Agreement, the Administration Agreement,
the Trust Agreement, the Indenture or the Purchase Agreement, (2)
seeking to prevent the issuance of the Notes, (3) that could materially
and adversely affect the Company's obligations under the Purchase
Agreement, the Administration Agreement, the Trust Agreement, the
Indenture or the Sale and Servicing Agreement, or (4) seeking to affect
adversely the federal or state income tax attributes of the Notes.
(vii) Such counsel is familiar with MBCC's standard
operating procedures relating to MBCC's acquisition of a perfected
first priority security interest in the vehicles financed by MBCC
pursuant to retail installment sale contracts in the ordinary course
of MBCC's business. Assuming that
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25
MBCC's standard procedures have been followed with respect to the
perfection of security interests in the Financed Vehicles (and such
counsel has no reason to believe that MBCC has not followed its
standard procedures in connection with the perfection of security
interest in the Financed Vehicles), MBCC has acquired or will acquire
a perfected first priority security interest in each of the Financed
Vehicles.
(viii) Immediately prior to the transfer of
Receivables by MBCC pursuant to the Purchase Agreement, MBCC was the
sole owner of all right, title and interest in the Receivables and the
other property to be transferred by it to the Company.
(ix) The Receivables are "chattel paper"
as defined in the UCC.
(m) The Representatives shall have received an
opinion of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, dated the Closing Date,
with respect to the validity of the Notes and such other related matters as the
Representatives shall require and the Company shall have furnished or caused
to be furnished to such counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
(n) The Representatives shall have received an
opinion addressed to the Underwriters, the Company and the Servicer of ▇▇▇▇▇▇ &
▇▇▇▇▇▇, counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representatives and its counsel, to
the effect that:
(i) The Indenture Trustee is a national banking
association duly organized and validly existing under the laws of the
United States.
(ii) The Indenture Trustee has the requisite power
and authority to execute, deliver and perform its obligations under the
Indenture and the Administration Agreement and to acknowledge and
accept the Sale and Servicing Agreement and has taken all necessary
action to authorize the execution and delivery of the Indenture and the
Administration Agreement and to execute the Sale and Ser-
25
26
vicing Agreement and to perform its obligations under the Indenture,
the Sale and Servicing Agreement and the Administration Agreement.
(iii) The Indenture, the Sale and Servicing Agreement
and the Administration Agreement have been duly executed and delivered
by the Indenture Trustee and constitutes a legal, valid and binding
agreement of the Indenture Trustee and are enforceable against the
Indenture Trustee in accordance with their terms, except as the same
may be limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation or other similar laws relating to or affecting the enforce-
ment of creditors' rights generally, and by general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether such
enforcibility is considered in a proceeding in equity or at law).
(iv) The Notes have been duly authenticated by the
Indenture Trustee in accordance with the terms of the Indenture.
(o) The Representatives shall have received an
opinion addressed to the Representatives, the Seller and MBCC of ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to the Representatives and counsel to the
Representatives, to the effect that:
(i) The Owner Trustee has been duly incorporated and
is validly existing as a banking corporation in good standing under the
laws of the State of Delaware with full corporate trust power and
authority to enter into and perform its obligations under the Trust
Agreement, and, on behalf of the Trust, under the Indenture, the Sale
and Servicing Agreement and the Administration Agreement.
(ii) The Trust Agreement duly creates for the benefit
of the Seller and the Certificateholders the interests in the Owner
Trust Estate which the Trust Agreement purports to create, and the
trust purported to be created by the Trust Agreement is validly formed
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27
and is validly existing as a business trust in good standing under the
laws of the State of Delaware.
(iii) The Trust Agreement authorizes the Trust to
execute and deliver the Indenture, the Sale and Servicing Agreement and
the Administration Agreement, to issue the Notes and to grant the
Indenture Trust Estate to the Indenture Trustee as security for the
Notes.
(iv) The execution and delivery of the Trust
Agreement and, on behalf of the Trust, the Indenture, the Sale and
Servicing Agreement and the Administration Agreement and the
performance by the Owner Trustee of its obligations under the Trust
Agreement, the Indenture, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized by all necessary
corporate action of the Owner Trustee and each has been duly executed
and delivered by the Owner Trustee.
(v) Assuming due authorization, execution and
delivery thereof by the parties thereto, the Trust Agreement, the
Indenture, the Sale and Servicing Agreement and the Administration
Agreement each constitutes a legal, valid and binding obligation of the
Owner Trustee, enforceable against the Owner Trustee in accordance with
its terms, except (1) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights, and (2)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(vi) Neither the execution nor delivery by the Owner
Trustee of the Trust Agreement and, on behalf of the Trust, the
Indenture, the Sale and Servicing Agreement and the Administration
Agreement, nor the consummation of any of the transactions by the Owner
Trustee con-
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28
templated thereby required the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action
with respect to, any governmental authority or agency under any
existing federal or Delaware State law governing the trust powers of
the Owner Trustee, except such as have been obtained, made or taken.
(vii) The Owner Trustee has duly authorized, issued,
executed and delivered each of the Notes pursuant to the terms and
provisions of the Indenture; each of such Notes is a legal, valid and
binding obligation of the Trust, enforceable against the Trust in
accordance with its terms and the terms of the Indenture; and each of
such Notes is entitled to the benefits and security afforded by the
Indenture in accordance with the terms of the Indenture.
(viii) The execution and delivery by the Owner
Trustee of the Trust Agreement and, on behalf of the Trust, the
Indenture, the Sale and Servicing Agreement and the Administration
Agreement, and the performance by the Owner Trustee of its obligations
thereunder do not conflict with or result in a breach or violation of
any of the terms, conditions or provisions of any law, governmental
rule or regulation of the United States or the State of Delaware
governing the banking or trust powers of the Owner Trustee or the
Certificate of Incorporation or By-Laws of the Owner Trustee or, to
such counsel's knowledge, any order writ, injunction or decree of any
court or governmental authority against the Owner Trustee or by which
it or any of its properties is bound or, to such counsel's knowledge,
any indenture, mortgage or contract or other agreement or instrument to
which the Owner Trustee is a party or by which it or any of its
properties is bound, or constitute a default thereunder.
(ix) The Owner Trustee has acquired such title to the
Receivables as has been conveyed to the Owner Trustee on the date
hereof,
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29
subject to the security interest created pursuant to the Indenture;
and, to such counsel's knowledge, there exist no liens, security
interests or charges affecting the title of the Owner Trustee to the
Receivables resulting from acts of or claims against the Owner Trustee
except liens, security interests or charges contemplated by the Basic
Documents.
(p) The Representatives shall have received a letter
or letters from each counsel delivering any written opinion to any Rating Agency
in connection with the transaction described herein which is not other wise
described in this Agreement allowing the Underwriters to rely on such opinion as
if it were addressed to the Underwriters.
(q) The Representatives shall have received an
officer's certificate, dated the Closing Date, of the Chairman of the Board, the
President or any Vice President and by a principal financial or accounting
officer of each of the Company and the Servicer in which each such officer shall
state that, the representations and warranties of the Company or the Servicer,
as applicable, contained in the Sale and Servicing Agreement and the
representations and warranties of MBCC or the Company, as applicable, contained
in the Purchase Agreement are true and correct in all material respects and that
the Company or the Servicer, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date in all material respects.
(r) The Notes shall have been rated "Aaa" by ▇▇▇▇▇'▇
Investors Service, Inc. and "AAA" by Standard & Poor's Ratings Services, a
Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
(s) On the Closing Date, the representations and
warranties of the Company in the Sale and Servicing Agreement will be true and
correct.
(t) Any taxes, fees and other governmental charges
which are due and payable in connection with the execution, delivery and
performance of this Agreement, the Indenture, the Sale and Servicing Agreement
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30
and the Notes shall have been paid by the Company at or prior to the Closing
Date.
8. The Company and DBNA agree to jointly and severally
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the legal fees and other
expenses reasonably incurred in connection with investigating, preparing or
defending any suit, action or proceeding or any claim asserted, except as
otherwise provided below regarding the limitation on use of counsel) caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus (as amended or supplemented if
the Company shall have furnished such amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information furnished to the Company or DBNA in writing by any Underwriter
through the Representatives expressly for use therein; provided that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) from whom the person asserting any losses, claims or damages
purchased Notes if such untrue statement or omission or alleged untrue statement
or omission made in such preliminary prospectus is eliminated or remedied in the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) and, if the furnishing of a copy of the
Prospectus (as so amended or supplemented) to such person was required by law
or was requested in writing by the Company, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Notes to such person.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each
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31
director and officer of the Company who signed the Registration Statement, and
DBNA and each person who controls the Company or DBNA within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company and DBNA to each Underwriter, but only
with reference to information furnished to the Company or DBNA in writing by
such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be inap-
propriate due to actual or potential differing interests between them, in which
case such counsel for the Indemnified Person shall be reasonably satisfactory
to the Indemnifying Person. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to one local counsel in each applicable jurisdiction) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
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they are incurred. Any such separate firm for the Under writers and such control
persons of Underwriters shall be designated in writing by the Representatives
and any such separate firm for the Company or DBNA or either of their directors,
officers who sign the Registration Statement or control persons shall be
designated in writing by DBNA. The Indemnifying Person shall not be liable for
any settlement of any claim or proceeding effected without its written consent.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such request prior to
the date of such settlement. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 8 is unavailable other than in accordance with its
terms to an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and DBNA on
the one hand and the Underwriters on the other hand from the offering of the
Notes or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and DBNA on the
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one hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and DBNA on the one hand and the Underwriters on the other shall
be deemed to be in the same respective proportions as the net proceeds from the
offering (before deducting expenses) received by the Company and DBNA and the
total underwriting discounts and the commissions received by the Underwriters,
in each case as set forth in the table on the cover of the Prospectus, bear to
the aggregate public offering price of the Notes. The relative fault of the
Company and DBNA on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or DBNA or by any
of the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and DBNA and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such
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fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to the respective principal
amount of Notes set forth opposite their names in Schedule I hereto, and not
joint.
The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company or DBNA, or any of their officers or directors or any
other person controlling the Company or DBNA and (iii) acceptance of and payment
for any of the Notes.
9. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the Representatives, by notice
given to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, the New York Stock Exchange or
the American Stock Exchange; (ii) trading of any securities of or guaranteed by
DBNA or DaimlerChrysler AG shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives is material and adverse and which,
in the judgment of the Representatives, makes it impracticable to market any
subclass of the Notes on the terms and in the manner contemplated in the
Prospectus.
10. This Agreement shall become effective upon the later of
(x) execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
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applicable, any post-effective amendment) by the Commission.
If on the Closing Date any one or more of the Underwriters
shall fail or refuse to purchase Notes of any subclass which it or they have
agreed to purchase hereunder on such date, and the aggregate principal amount of
Notes of such subclass which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of the Notes of such subclass to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
principal amount of Notes of such subclass set forth opposite their respective
names in Schedule I bears to the aggregate principal amount of Notes of such
subclass set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Notes of such subclass which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the principal amount of Notes of any subclass that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such principal amount of Notes of such subclass
without the written consent of such Underwriter. If on the Closing Date any
Underwriter or Underwriters shall fail or refuse to purchase Notes of any
subclass which it or they have agreed to purchase hereunder on such date, and
the aggregate principal amount of Notes of such subclass with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
the Notes of such subclass to be purchased on such date, and arrangements
satisfactory to the Representatives and the Company for the purchase of such
Notes are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or
the Company. In any such case either the Representatives or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in
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respect of any default of such Underwriter under this Agreement.
11. If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company agrees to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
12. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, delivered by hand
or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representatives, c/o Chase Securities Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Facsimile No.:
212-834-6562), Attention: Global Securitized Finance and to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., Seven World Trade Center, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Asset Backed Operations - facsimile number (▇▇▇) ▇▇▇-▇▇▇▇. Notices to the
Company shall be given to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Facsimile No.: 302-426-6520), Attention: President.
Notices to DBNA shall be given to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (Facsimile No.: 212-308-4252), Attention: Treasurer.
13. This Agreement shall inure to the benefit of and be
binding upon the Company, DBNA, the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein con-
tained. No purchaser of Notes from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
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14. This Agreement may be signed in counterparts, each of
which shall be an original and all of which together shall constitute one and
the same instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among the Company, DBNA and the
Underwriters in accordance with its terms.
Very truly yours,
DAIMLER-BENZ VEHICLE RECEIVABLES
CORPORATION
By: /s/ H.S. Traison
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
DAIMLER-BENZ NORTH AMERICA
CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and CEO
By: /s/ H.S. Traison
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Treasurer
39
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CHASE SECURITIES INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Title: Vice President
Acting on behalf of themselves and
as the Representatives of the
several Underwriters
40
SCHEDULE I
UNDERWRITERS
Initial Initial Initial Initial
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Notes Notes Notes Notes
------------ ----------- ----------- ---------
Chase Securities Inc. ... $144,000,000 $203,176,000 $176,001,000 $96,720,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 144,000,000 203,175,000 203,175,000 96,720,000
Deutsche Bank Securities
Inc. ................... 24,000,000 33,883,000 29,333,000 16,120,000
29,333,000 16,120,000
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated........ 24,000,000 33,883,000 29,333,000 16,120,000
------------ ----------- ------------ ------------
Total ................... $360,000,000 $508,000,000 $440,000,000 $241,800,000
============ ============ ============ ============
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SCHEDULE II
FORM OF SERVICER'S CERTIFICATE
Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Sale and Servicing Agreement dated as of
November 1, 1998 (the "Sale and Servicing
Agreement") between Daimler-Benz Vehicle
Receivables Corporation, as Seller,
Mercedes-Benz Credit Corporation, in its
individual capacity and as Servicer,
Daimler-Benz Vehicle Owner Trust 1998-A,
as Issuer and Citibank, N.A., as Indenture
Trustee
Determination Date to which this Certificate relates:
___________, 19__
For Monthly Period ending on _________, 19__
1. The undersigned Servicing Officer does hereby certify that
the Pool Factor is __________.
2. Capitalized terms used in this Certificate shall have the
same meanings as in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of the
above-referenced Determination Date.
MERCEDES-BENZ CREDIT
CORPORATION, as Servicer
By: ____________________
Servicing Officer
