EXHIBIT 1.B
CHRYSLER FINANCIAL COMPANY L.L.C.
[Description of Securities]
FORM OF DISTRIBUTION AGREEMENT
[Date]
[Names of Agents]
[Addresses of Agents]
Dear Sirs:
Chrysler Financial Company L.L.C., a Michigan limited liability
company (the "Company"), confirms its agreement with [Names of Agents]
(collectively, the "Agents") with respect to the issue and sale by the
Company of its [Description of Securities] described herein (the "Notes").
The Notes are to be issued pursuant to an indenture dated as of February 15,
1988, as supplemented by a first supplemental indenture dated as of March 1,
1988, a second supplemental indenture dated as of September 7, 1990 and a
third supplemental indenture dated as of May 4, 1992, each between Chrysler
Financial Corporation ("CFC") and Manufacturers Hanover Trust Company, which
has been succeeded by United States Trust Company of New York as successor
trustee (the "Trustee"), and a fourth supplemental indenture (the "Fourth
Supplemental Indenture") dated as of October 1, 1998, between the Company (as
successor to CFC) and the Trustee (such indenture as so supplemented and as
the same may be amended or supplemented or restated from time to time, the
"Indenture").
The Company and CFC merged on __________, 1998 (the "Merger") with
the Company being the surviving entity. Pursuant to the Merger, the Company
succeeded to all of the assets and liabilities of CFC (including the
outstanding Notes previously issued by CFC). Unless the context otherwise
requires, the term "Company" shall be deemed to include CFC as the
predecessor entity. As of the date hereof, the Company has authorized the
issuance and sale of up to $ (or its equivalent based on the applicable
exchange rate at the time of issuance, in such foreign currencies or units of
two or more currencies as the Company shall designate at the time of
issuance) aggregate initial offering price of Notes by the Company directly
or through the Agents pursuant to the terms of this Agreement (less $
aggregate initial offering price of Notes previously issued by CFC). It is
understood, however, that the Company may from time to time, pursuant to an
Officer's Certificate (as defined in the Indenture) delivered to the Trustee
pursuant to Section 301 of the Indenture (with an original copy thereof
delivered to the Agents), reduce the authorized aggregate initial offering
price of the Notes (but not below the aggregate initial offering price of
Notes previously issued under the Indenture) or authorize the issuance of
additional Notes and that such additional Notes may be distributed directly
by the Company or
through or to the Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company
through the Agents to investors, in which case the Agents will act as agents
of the Company in soliciting Note purchases, and (as may from time to time be
agreed to by the Company and the related Agent or Agents) to one or more
Agents as principal for resale to investors and other purchasers.
CFC filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (Nos. 33-[ ] and 333-[ ])
for the registration of debt securities under the Securities Act of 1933 (the
"1933 Act") and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations"). The Company has filed a post-effective
amendment (the "Post-Effective Amendment") to such registration statements
pursuant to Rule 414 of the 1933 Act Regulations ("Rule 414") expressly
adopting such statements as its own for all purposes of the 1933 Act and the
Securities Exchange Act of 1934 (the "1934 Act"). Such registration
statements have been declared effective by the Commission and the Indenture
has been qualified under the Trust Indenture Act of 1939 (the "1939 Act").
Such registration statements (and any further registration statements which
may be filed by the Company for the purposes of registering additional Notes
and in connection with which this Agreement is included or incorporated by
reference as an exhibit) and the prospectus constituting a part thereof, and
any prospectus supplements relating to the Notes, including all documents
incorporated therein by reference, as from time to time amended or
supplemented by the filing of documents pursuant to the 1934 Act or the 1933
Act or otherwise, are referred to herein collectively as the "Registration
Statements" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes which is not required to be filed
by the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the time
it is first provided to the Agents for such use.
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions
stated herein and subject to the reservation by the Company of the right to
sell Notes directly to investors on its own behalf, the Company hereby
appoints the Agents, except as otherwise provided in this Section 1(a), as
the exclusive agents for the purpose of soliciting purchases of the Notes
from the Company by others and agrees that, except as otherwise contemplated
herein, whenever the Company determines to sell Notes directly to one or more
Agents as principal for resale to others, it will enter into a Terms
Agreement (as hereafter defined) relating to each such sale in accordance
with the provisions of Section 3(b) hereof if requested by such Agent. The
Company agrees that, except as otherwise provided in this Section 1(a),
during the period the Agents are acting as the Company's agents hereunder,
the Company will not engage any other party to assist in the placement of the
Notes; provided, however, that so long as this Agreement shall be in effect
the Company may solicit offers to purchase Notes through any agent only by
amending this Agreement to appoint such agent an additional Agent hereunder
on the same terms and conditions as provided herein for the Agents and by
giving the Agents notice of such appointment as soon as practicable
thereafter. The Company may accept offers to purchase
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Notes through an agent other than an Agent, provided, that (i) the Company
shall not have solicited such offers, (ii) the Company and such agent shall
have executed an agreement with respect to each such purchase having terms
and conditions (including, without limitation, commission rates) with respect
to such purchases substantially the same as the terms and conditions that
would apply to such purchases under this Agreement if such agent was an Agent
(which may be accomplished by incorporating by reference in such agreement
the terms and conditions of this Agreement) and (iii) the Company shall
promptly notify the Agents of the execution of any such agreement and shall
provide the Agents with a copy of such agreement promptly following the
execution thereof.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. On
the basis of the representations and warranties set forth herein, but subject
to the terms and conditions set forth herein, each Agent agrees to use its
reasonable efforts to solicit offers to purchase Notes from the Company upon
the terms set forth in the Prospectus, as amended or supplemented from time
to time during the term of this Agreement, it being understood that the
Company shall not approve the solicitation of purchases of Notes in excess of
the amount which shall be authorized by the Company from time to time or in
excess of the initial offering price of Notes registered pursuant to the
Registration Statements. The Agents will have no responsibility for
maintaining records with respect to the aggregate initial offering price of
Notes sold, or of otherwise monitoring the availability of Notes for sale
under the Registration Statements. Each Agent will communicate to the
Company, orally or in writing, each offer to purchase Notes, other than those
offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as
a whole or in part, and any such rejection shall not be deemed a breach of
the Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agents; Purchases as Principals. In
soliciting purchases of the Notes on behalf of the Company, unless otherwise
specified pursuant to the terms hereof, each Agent shall act solely as agent
for the Company and not as principal. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser
whose offer to purchase Notes has been solicited by such Agent and accepted
by the Company. No Agent shall have any liability to the Company in the event
any such purchase is not consummated for any reason. No Agent shall have any
obligation to purchase Notes from the Company as principal, but may agree
from time to time to purchase Notes as principal. Any such purchase of Notes
by an Agent as principal shall be made pursuant to a Terms Agreement in
accordance with Section 3(b) hereof if requested by such Agent.
(d) Reliance. The Company and the Agents agree that any Notes the
placement of which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company
contained herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether through the Agents as agents or to one or more
Agents as principal), as of the date of each delivery of Notes (whether
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through the Agents as agents or to one or more Agents as principal) (the date
of each such delivery to one or more Agents as principal being hereafter
referred to as a "Settlement Date"), and as of any time that the Registration
Statements or the Prospectus shall be amended or supplemented (other than by
an amendment or supplement providing solely for the establishment of or a
change in, the interest rates, maturity or price of Notes or similar changes)
or there is filed with the Commission any document incorporated by reference
into the Prospectus (other than any Current Report on Form 8-K relating
exclusively to the issuance of debt securities under the Registration
Statements other than the Notes) (each of the times referenced above being
referred to herein as a "Representation Date") as follows:
(i) Due Organization and Qualification. The Company has been
duly organized and is validly existing as a limited liability
company in good standing under the laws of the State of Michigan
with full power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus; and the Company is duly qualified as a foreign limited
liability company to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify and be in good
standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is
set forth in Schedule B hereto (each, a "Significant Subsidiary")
has been duly incorporated (in the case of subsidiaries which are
corporations) or duly organized (in the case of subsidiaries which
are limited liability companies) and is validly existing and in
good standing under the laws of the jurisdiction of its
incorporation or organization (as the case may be), has full power
and authority to own, lease and operate its properties and conduct
its business as described in the Prospectus and is duly qualified
as a foreign corporation or limited liability company (as the case
may be) to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good
standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and all of the issued and
outstanding capital stock of each Significant Subsidiary which is
a corporation, and all of the issued and outstanding membership
interests of each Significant Subsidiary which is a limited
liability company, has been duly authorized and validly issued, is
fully paid and non-assessable and, except for directors'
qualifying shares, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(iii) Registration Statements and Prospectus. The Company
meets the requirements for use of Form S-3 and, at the time each
of the Registration Statements and the Post-Effective Amendment
thereto became effective, each Registration Statement complied,
and as of the applicable Representation Date will comply, in all
material respects with the applicable requirements of the 1933 Act
and the 1933 Act Regulations
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and the 1939 Act and the rules and regulations of the Commission
promulgated thereunder. Each of the Registration Statements, at
the time it and the Post-Effective Amendment thereto became
effective, did not, and at each time thereafter at which any
amendment to the Registration Statements becomes effective or any
Annual Report on Form 10-K is filed by the Company with the
Commission and as of the applicable Representation Date, will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus, as of the
date hereof does not, and as of the applicable Representation Date
will not, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statements or Prospectus made
in reliance upon and in conformity with information furnished to
the Company in writing by the Agents expressly for use in the
Registration Statements or Prospectus or to those parts of the
Registration Statements which constitute the Statements of
Eligibility and Qualification under the 1939 Act on Form T-1.
(iv) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were filed with the
Commission, complied in all material respects with the
requirements of the 1934 Act and the rules and regulations
promulgated thereunder (the "1934 Act Regulations"), and, when
read together and with the other information in or incorporated by
reference in the Prospectus, did not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(v) Accountants. The accountants who certified the financial
statements included or incorporated by reference in the Prospectus
are independent public accountants within the meaning of the 1933
Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements and any
supporting schedules of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statements and the Prospectus present fairly the
consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the
consolidated results of their operations for the periods
specified; and, except as stated therein, said financial
statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis; and any supporting schedules included or
incorporated by reference in the Registration Statements present
fairly the information required to be stated therein.
(vii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement has been duly authorized,
executed and delivered by the Company and, upon execution and
delivery by the Agent, will be a valid and legally binding
agreement of the Company; the Indenture has been duly authorized,
executed and delivered by the Company and, assuming it has been
duly and validly authorized, executed and delivered by the
Trustee, constitutes a valid and legally binding obligation
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of the Company enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles; the Notes have been duly and validly authorized for
issuance, offer and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions of
this Agreement and the Indenture against payment of the
consideration therefor specified in the Prospectus or agreed upon
pursuant to the provisions of this Agreement, the Notes will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles; the
Notes and the Indenture will be substantially in the form
heretofore delivered to the Agent and conform in all material
respects to all statements relating thereto contained in the
Prospectus; and each holder of Notes will be entitled to the
benefits of the Indenture.
(viii) Material Changes or Material Transactions. Since the
respective dates as of which information is given in the
Registration Statements and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business and (B) there have been no
material transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business.
(ix) No Defaults; Compliance with Laws; Regulatory
Approvals. The Company is not in violation of its articles of
organization or operating agreement or in default in the
performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company is
a party or by which it may be bound, or to which any of the
property or assets of the Company is subject, which violation or
default would materially adversely affect the business or
financial condition of the Company and its subsidiaries considered
as one enterprise; and the execution, delivery and performance of
this Agreement, any Terms Agreement and the Indenture and the
consummation of the transactions contemplated herein and therein
will not conflict with, or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company pursuant
to, any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company is a party or
by which it may be bound, or to which any of the property or
assets of the Company is subject, nor will such action result in
any violation of the provisions of the articles of organization,
operating agreement or other organizational documents of the
Company or, to the best knowledge of the Company, any law,
administrative regulation or administrative or court decree, and
no consent, approval, authorization, order or decree of any court
or governmental agency or body of the United States is required
for the consummation by the Company of the transactions
contemplated by this Agreement, any Terms Agreement or the
Indenture, except such as may be required under the 1933 Act or
the 1933 Act Regulations or the 1939 Act or the 1939 Act
Regulations or as may be required by state securities or Blue Sky
laws.
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(x) Legal Proceedings; Contracts. There is no action, suit
or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against the Company (or CFC) or any of
its subsidiaries which is required to be disclosed in the
Prospectus; all pending legal or governmental proceedings to which
the Company or any of its subsidiaries is a party or of which any
of their respective property or assets is the subject which are
not described in the Prospectus, including ordinary routine
litigation incidental to its business, are, considered in the
aggregate, not material; and there are no contracts or documents
of the Company (or CFC) or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statements by
the 1933 Act or by the 1933 Act Regulations which have not been so
filed.
(xi) Licenses. The Company owns or possesses or has obtained
all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease or own, as
the case may be, and to operate its properties and to carry on its
business as presently conducted where its ownership or lease of
substantial properties or the conduct of its business requires
such ownership or possession or the obtaining of such governmental
licenses, permits, consents, orders, approvals and other
authorizations and where the failure to do so would materially
adversely affect the business or financial condition of the
Company and its subsidiaries considered as one enterprise.
(xii) Business with Cuba. The Company has complied with all
applicable provisions of Florida H.B. 1771, Section 1, Chapter
92-198 of the Florida Securities and Investors Act, and all
regulations thereunder relating to issuers doing business with
Cuba.
(xiii) Ratings. The Medium-Term Note Program under which the
Notes are issued (the "Program"), as well as the Notes, are rated
"A2" by ▇▇▇▇▇'▇ Investors Service, Inc. and "A" by Standard &
Poor's Ratings Services, or such other rating as to which the
Company shall have most recently notified the Agents pursuant to
Section 4(a) hereof.
(b) Additional Certifications. Any certificate signed by any
director or officer of the Company and delivered to the Agents or to counsel
to the Agents in connection with an offering of Notes or the sale of Notes to
one or more of the Agents as principal shall be deemed a representation and
warranty by the Company to the Agents as to the matters covered thereby on
the date of such certificate and at each Representation Date subsequent
thereto.
SECTION 3. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein
set forth, the Agents agree, when acting as agents of the Company, to use
their reasonable efforts to solicit offers to purchase the Notes upon the
terms and conditions set forth herein and in the Prospectus.
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The Company reserves the right, in its sole discretion,
to suspend solicitation of purchases of the Notes through the
Agents, as agents, commencing at any time for any period of time
or permanently. Upon receipt of instructions from the Company, the
Agents will forthwith suspend solicitation of purchases from the
Company until such time as the Company has advised the Agents that
such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in
the form of a discount or otherwise as agreed to by the Company
and the Agents, equal to the applicable percentage of the
principal amount of each Note sold by the Company as a result of a
solicitation made by such Agent as set forth in Schedule A hereto;
provided, however, that the Company shall only be obligated to pay
one such fee with respect to any particular Note so sold.
The purchase price, interest rate, maturity date and
other terms of the Notes shall be agreed upon by the Company and
the Agents and set forth in a pricing supplement to the Prospectus
to be prepared following each acceptance by the Company of an
offer for the purchase of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the Notes will be
issued in denominations of $1,000 and integral multiples thereof.
All Notes sold through the Agents as agents will be sold at 100%
of their principal amount unless otherwise agreed to by the
Company and the Agents.
(b) Purchases as Principals. Each sale of Notes to one or more
Agents as principal shall be made in accordance with the terms contained
herein and, if requested by such Agent, pursuant to a separate agreement
which will provide for the sale of such Notes to, and the purchase and
reoffering thereof by, such Agent or Agents. Each such separate agreement
(which may be an oral agreement) between one or more Agents and the Company
is herein referred to as a "Terms Agreement". Unless the context otherwise
requires, each reference contained herein to "this Agreement" shall be deemed
to include any Terms Agreement between the Company and one or more Agents.
Each such Terms Agreement, whether oral or in writing, shall be with respect
to such information (as applicable) as is specified in Exhibit A hereto. An
Agent's commitment to purchase Notes as principal pursuant to any Terms
Agreement or otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by each Agent
pursuant thereto, the price to be paid to the Company for such Notes (which,
if not so specified in a Terms Agreement, shall be at a discount equivalent
to the applicable commission set forth in Schedule A hereto), the time and
place of delivery of and payment for such Notes, any provisions relating to
rights of, and default by, purchasers acting together with the Agents in the
reoffering of the Notes, and such other provisions (including further terms
of the Notes) as may be mutually agreed upon. The Agents may utilize a
selling or dealer group in connection with the resale of the Notes purchased
and may reallow any portion of the discount they receive from the Company to
such seller or dealer group. Such Terms Agreement shall also specify whether
or not any of the officer's certificate, opinions of counsel or comfort
letter specified in Sections 7(b), 7(c) and 7(d) hereof shall be required to
be delivered by the Company on the related Settlement Date.
(c) Administrative Procedures. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time by the
Agents and the Company (the
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"Procedures"). Each Agent and the Company agree to perform the respective
duties and obligations specifically provided to be performed by them in the
Procedures.
(d) Delivery of Closing Documents. The documents required to be
delivered by Section 5 hereof shall be delivered at the office of ▇▇▇▇▇ &
Wood LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the date
hereof, or at such other time or place as the Agents and the Company may
agree.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will immediately notify
(i) the Agents of the effectiveness of any amendment to any of the
Registration Statements, (ii) the related Agent or Agents of the transmittal
to the Commission for filing of any supplement to the Prospectus (other than
an amendment or supplement which relates exclusively to an offering of debt
securities under the Registration Statements other than the Notes) or any
document to be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus (other than any Current Report on Form 8-K
relating exclusively to an offering of debt securities under the Registration
Statements other than the Notes), (iii) the Agents of the receipt of any
comments from the Commission with respect to the Registration Statements or
the Prospectus, (iv) the Agents of any request by the Commission for any
amendment to the Registration Statements or any amendment or supplement to
the Prospectus (other than an amendment or supplement which relates
exclusively to an offering of debt securities under the Registration
Statements other than the Notes) or for additional information and (v) the
Agents of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statements or the initiation of any
proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. Except as otherwise
provided in subsection (l) of this Section, the Company will give the Agents
notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment
to any of the Registration Statements or any amendment or supplement to the
Prospectus (other than an amendment or supplement providing solely for the
establishment of or change in, the interest rates, maturity or price of Notes
or other similar changes or an amendment or supplement which relates
exclusively to an offering of debt securities under the Registration
Statements other than the Notes) whether by the filing of documents pursuant
to the 1934 Act (other than any Current Report on Form 8-K relating
exclusively to the issuance of debt securities under the Registration
Statements other than the Notes), the 1933 Act or otherwise, and will furnish
the Agents with copies of any such amendment or supplement or other documents
proposed to be filed or prepared a reasonable time in advance of such
proposed filing or preparation, as the case may be, and will not file any
such amendment or supplement in a form to which the Agents or counsel to the
Agents shall reasonably object.
(c) Copies of the Registration Statements and the Prospectus. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statements (as
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originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated by
reference in the Prospectus) as the Agents may reasonably request. The
Company will furnish to each Agent as many copies of the Prospectus, as
amended or supplemented (other than an amendment or supplement which relates
exclusively to an offering of debt securities under the Registration
Statements other than the Notes), as such Agent shall reasonably request so
long as such Agent is required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare,
with respect to any Notes to be sold through or to the Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the Commission on the fifth business day after the date on which
such Pricing Supplement is first used.
(e) Revisions of Prospectus - Material Changes. Except as
otherwise provided in subsection (1) of this Section, if at any time during
the term of this Agreement any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel to the
Agents or counsel for the Company, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein not misleading in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, to
amend or supplement the Registration Statements or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
immediate notice shall be given, and confirmed in writing, to the Agents to
cease the solicitation of offers to purchase the Notes in the Agents'
capacity as agents and to cease sales of any Notes the Agents may then own as
principal pursuant to a Terms Agreement, and the Company will promptly
prepare and file with the Commission such amendment or supplement, whether by
filing documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may
be necessary to correct such untrue statement or omission or to make the
Registration Statements and Prospectus comply with such requirements.
(f) Prospectus Revisions - Periodic Financial Information. Except
as otherwise provided in subsection (1) of this Section, on or prior to the
date on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the
first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the
Registration Statements and the Prospectus to be amended or supplemented,
whether by the filing of documents pursuant to the 1934 Act, the 1933 Act or
otherwise, to include or incorporate by reference financial information with
respect thereto and corresponding information for the comparable period of
the preceding fiscal year, as well as such other information and explanations
as shall be necessary for an understanding thereof or as shall be required by
the 1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions - Audited Financial Information. Except
as otherwise provided in subsection (1) of this Section, on or prior to the
date on which there shall be released to the general public financial
information included in or derived from the audited financial
10
statements of the Company for the preceding fiscal year, the Company shall
cause the Registration Statements and the Prospectus to be amended, whether
by the filing of documents pursuant to the 1934 Act, the 1933 Act or
otherwise, to include or incorporate by reference such audited financial
statements and the report or reports, and consent or consents to such
inclusion or incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations as shall
be necessary for an understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company, by applying the provisions
of Rule 158 under the 1933 Act, will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the ▇▇▇▇ ▇▇▇) covering each twelve month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of
the Registration Statements with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution
of the Notes; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The Company
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided. The
Company will promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening
of any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the 1934 Act. Such documents will comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations and to the extent such documents are incorporated by reference in
the Prospectus, when read together with the other information in or
incorporated by reference into the Prospectus, will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
(k) Stand-Off Agreement. If specified by the Agents in writing in
connection with a purchase by them of Notes, between the date of any Terms
Agreement and the Settlement Date with respect to such Terms Agreement, the
Company will not, without the prior written consent of each Agent party to
such Terms Agreement, directly or indirectly, sell, offer to sell, contract
to sell or otherwise dispose of, or announce the offering of, any debt
securities denominated in the same currency as the Notes to be purchased
pursuant to such Terms Agreement, or any security exchangeable into such debt
securities (other than the Notes that are to be sold pursuant to such Terms
Agreement and securities sold in any Euromarket financing and commercial
paper in the ordinary course of business).
11
(l) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (a), (b), (c), (e), (f)
or (g) of this Section or the provisions of Section 7 hereof during any
period from the time (i) the Agents shall have received written notification
from the Company to suspend solicitation of purchases of the Notes in their
capacity as agents and (ii) no Agent shall then hold any Notes as principal
purchased pursuant to a Terms Agreement, until the time the Company shall
determine that solicitation of purchases of the Notes should be resumed or an
Agent shall subsequently purchase Notes from the Company as principal.
(m) Use of Proceeds. The net proceeds from the sale of Notes will
be used by the Company as described in the Prospectus.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to solicit offers to purchase the
Notes as agents of the Company, the obligations of any purchasers of the
Notes sold through the Agents as agents, and any obligation of the Agents
to purchase Notes as principals pursuant to a Terms Agreement or otherwise
will be subject to the accuracy of the representations and warranties on
the part of the Company herein contained and to the accuracy of the
statements of the Company's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in
form and substance satisfactory to the Agents and their counsel:
(1) Opinion of Company Counsel. The opinion of ▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq., counsel to the Company, or other counsel
satisfactory to the Agents, to the effect that:
(i) The Company has been duly organized and is validly
existing as a limited liability company in good standing
under the laws of the State of Michigan.
(ii) The Company has full power and authority to own,
lease and operate its properties and to conduct its business
as described in the Prospectus. A duly authorized and
executed certificate of merger with respect to the merger of
CFC with and into the Company (the "Merger") has been duly
filed with the Secretary of State of the State of Michigan
and the Merger has become effective under the laws of the
State of Michigan
(iii) To the best of such counsel's knowledge, the
Company is duly qualified as a foreign limited liability
company to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify
and be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, business
12
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iv) Each Significant Subsidiary of the Company has been
duly organized and is validly existing and in good standing
under the laws of the jurisdiction of its incorporation or
organization (as the case may be) has full power and
authority to own, lease and operate its properties and
conduct its business as described in the Registration
Statements, and is duly qualified as a foreign corporation or
limited liability company (as the case may be), to transact
business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(v) This Agreement and any applicable Terms Agreement
have each been duly and validly authorized, executed and
delivered by the Company.
(vi) The Indenture has been duly and validly authorized,
executed and delivered by the Company and (assuming the
Indenture has been duly authorized, executed and delivered by
the Trustee) constitutes a legal, valid and binding agreement
of the Company, enforceable in accordance with its terms,
subject to: (w) bankruptcy, insolvency, reorganization,
moratorium, receivership, fraudulent conveyance, or other
similar laws now or hereafter in effect relating to
creditors' rights and remedies; (x) general principles of
equity regardless of whether applied in a proceeding in
equity or at law; (y) 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; and (z)
the effect of law or applicable public policy on any
provisions relating to indemnification of the Trustee.
(vii) The Notes, in the form(s) certified by the Company
as of the date hereof, have been duly authorized for
issuance, offer and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the
provisions of this Agreement and the Indenture against
payment of the consideration therefor, will constitute valid
and legally binding obligations of the Company, enforceable
in accordance with their terms, subject to (x) bankruptcy,
insolvency, reorganization, moratorium, receivership,
fraudulent conveyance, or similar other laws now or hereafter
in effect relating to creditors' rights and remedies; (y)
general principles of equity regardless of whether applied in
a proceeding in equity or at law; and (z) 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; and each holder of Notes will be
entitled to the benefits of the Indenture.
(viii) The Indenture is qualified under the 1939 Act.
13
(ix) Each of the Registration Statements and the
Post-Effective Amendment thereto is effective under the 1933
Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of either of the
Registration Statements has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission. Pursuant to Rule 414, the Registration Statements
shall be deemed the registration statements of the Company
for the purpose of continuing the offering provided therein.
(x) At the time each of the Registration Statements and
the Post-Effective Amendment thereto became effective, each
Registration Statement (other than the financial statements
and other financial and statistical data included or
incorporated by reference therein and the Statement of
Eligibility and Qualification on Form T-1 filed as an exhibit
thereto, as to which no opinion need be rendered) complied as
to form in all material respects with the requirements of the
1933 Act, the 1939 Act and the regulations under each of
those Acts.
(xi) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus complied when
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations.
(xii) The information in the Prospectus under the
captions "Description of Notes", "Certain United States
Federal Income Tax Considerations", "Description of Debt
Securities" and "Limitations on Issuance of Bearer Securities
and Bearer Warrants" has been reviewed by such counsel and is
correct in all material respects and, insofar as they purport
to summarize certain provisions of documents specifically
referred to therein, are accurate summaries of such
provisions.
(xiii) To the best of such counsel's knowledge, there
are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the
Company or any subsidiary of the Company is a party or of
which any of their property is the subject which are not
described in the Registration Statements, including ordinary
routine litigation incidental to the business of the Company
or any such subsidiary, are, considered in the aggregate, not
material to the financial condition, earnings, prospects,
business, or properties of the Company and its subsidiaries
taken as a whole.
(xiv) To the best of such counsel's knowledge, neither
the Company nor any of its Significant Subsidiaries is in
violation of its articles of organization, operating
agreement or other organizational documents or in default in
the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note or lease to which
it is a party or by which it or any of them or their
properties may be bound. The execution and delivery of this
Agreement or of the Indenture, or the consummation by the
Company of the transactions contemplated herein and therein
have been duly authorized by all necessary corporate action
and will not
14
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument
known to such counsel and to which the Company or any such
subsidiary is a party or by which it or any of them may be
bound or to which any of the property or assets of the
Company or any such subsidiary is subject, or any law,
administrative regulation or administrative or court decree
known to such counsel to be applicable to the Company of any
court or governmental agency, authority or body or any
arbitrator having jurisdiction over the Company; nor will
such action result in any violation of the provisions of the
articles of organization, operating agreement or any other
organizational documents of the Company.
(xv) To the best of such counsel's knowledge, there are
no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments or documents required to be
described or referred to in the Registration Statements or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or references
thereto are correct, and no default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to, filed or incorporated
by reference.
(xvi) No consent, approval, authorization, order or
decree of any court or governmental agency or body (including
the Commission) is required for the consummation by the
Company of the transactions contemplated by this Agreement or
in connection with the sale of Notes hereunder, except such
as have been obtained or rendered, as the case may be, or as
may be required under the state securities laws.
(2) Opinion of Counsel to the Agents. The opinion of ▇▇▇▇▇ &
Wood LLP, counsel to the Agents, covering the matters referred to
in subparagraph (1) under the subheadings (i) and (v) through
(ix), inclusive, above.
(3) In giving their opinions required by subsection (a)(1)
and (a)(2) of this Section, ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. and
▇▇▇▇▇ & Wood LLP shall each additionally state that they do not
believe that the Registration Statements, at the time they became
effective, and if an amendment to the Registration Statements or
an Annual Report on Form 10-K has been filed by the Company with
the Commission subsequent to the effectiveness of the Registration
Statements and prior to the date of such statement, then at the
time such amendment became effective or at the time of the most
recent such filing (to the extent deemed to be incorporated by
reference in the Registration Statements and Prospectus), and at
the date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 7(c) hereof)
at the date of any Terms Agreement and at the Settlement Date with
respect thereto, as the case may be, contain or contained an
untrue statement of a material fact or omits or omitted to state a
material fact required to be stated therein or necessary in order
to make the statements therein not
15
misleading or that the Prospectus, as amended or supplemented at
the date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 7(c) hereof)
at the date of any Terms Agreement and at the Settlement Date with
respect thereto, as the case may be, contains or contained an
untrue statement of a material fact or omits or omitted to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Such counsel may state that they express no view as to
the financial statements and other financial data included or
incorporated by reference in such Registration Statements or
Prospectus or as to the Statement of Eligibility and Qualification
on Form T-1 filed as an exhibit to the Registration Statements.
(b) Officers' Certificate. At the date hereof the Agents shall
have received (i) a certificate of either the President or the Vice President
and the chief financial officer of the Company or any other Vice President
and the treasurer or chief accounting officer of the Company, dated as of the
date hereof, to the effect that (A) since the respective dates as of which
information is given in the Registration Statements and the Prospectus or
since the date of any Terms Agreement, there has not been any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course
of business, (B) the other representations and warranties of the Company
contained in Section 2 hereof are true and correct with the same force and
effect as though expressly made at and as of the date of such certificate,
(C) the Company has performed or complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
date of such certificate, and (D) no stop order suspending the effectiveness
of any of the Registration Statements has been issued and, to their
knowledge, no proceedings for that purpose have been initiated or threatened
by the Commission and (ii) a certificate of Chrysler Corporation signed by an
executive officer of Chrysler Corporation to the effect that (A) the signers
of such certificate have examined the disclosures contained under the heading
"Information Concerning Chrysler Corporation" in the Prospectus and in the
supplement thereto relating to the Notes and (B) such disclosures do not
contain as of the date of such certificate an untrue statement of a material
fact and do not omit to state a material fact necessary in order to make the
statements made therein, in the light of circumstances under which they were
made, not misleading and (C) no event has occurred as of the date of such
certificate that would require such disclosures to be amended or supplemented
to comply with the 1933 Act or the 1933 Act Regulations.
(c) Comfort Letter. On the date hereof, the Agents shall have
received a letter from Deloitte & Touche LLP, dated as of the date hereof and
in form and substance previously agreed to by the Company and the Agents.
(d) Other Documents. On the date hereof and on each Settlement
Date with respect to any Terms Agreement, counsel to the Agents shall have
been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or
in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory
in form and substance to the Agents and to counsel to the Agents.
16
(e) If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement (or, at
the option of the Agents, any Terms Agreement) may be terminated by the
Agents by notice to the Company at any time and any such termination shall be
without liability of any party to any other party, except that the covenant
regarding provision of an earnings statement set forth in Section 4(h)
hereof, the provisions concerning payment of expenses under Section 10
hereof, the indemnity and contribution agreements set forth in Sections 8 and
9 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 11 hereof and the
provisions set forth under "Parties" of Section 15 hereof shall remain in
effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through an Agent as agent shall be made by
the Company to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a
Note on the date fixed for settlement, the Agent shall promptly notify the
Company and deliver the Note to the Company, and, if the Agent has
theretofore paid the Company for such Note, the Company will promptly return
such funds to the Agent. If such failure occurred for any reason other than
default by the Agent in the performance of its obligations hereunder, the
Company will reimburse such Agent on an equitable basis for its reasonable
loss of the use of the funds for the period such funds were credited to the
Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes, and each delivery of
Notes to one or more Agents pursuant to a Terms Agreement, shall be deemed to
be an affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore delivered to
the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of
delivery to the purchaser or its agent, or to the Agent or Agents, of the
Note or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statements
and Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Subject to the provisions
of Section 4(l) hereof, each time that the Registration Statements or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of or a change in the
interest rates, maturity or price of Notes or similar changes, and other than
by an amendment or supplement which relates exclusively to an offering of
debt securities under the Registration Statements other than the Notes) or
there is filed with the Commission any document incorporated by reference
into the Prospectus (other than any Current Report on Form 8-K relating
exclusively to the issuance of debt securities under the Registration
Statements other than the Notes) or (if required pursuant to the terms of a
Terms Agreement) the Company sells Notes to one or more Agents pursuant to a
Terms Agreement, the Company shall furnish or
17
cause to be furnished to the Agents forthwith a certificate dated the date of
filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may
be, in form reasonably satisfactory to the Agents to the effect that the
statements contained in the certificate referred to in Section 5(b) hereof
which was last furnished to the Agents are true and correct at the time of
such amendment, supplement, filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statements and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of
the same tenor as the certificate referred to in said Section 5(b), modified
as necessary to relate to the Registration Statements and the Prospectus as
amended and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Subject to the
provisions of Section 4(l) hereof, each time that the Registration Statements
or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for the establishment of or a change
in the interest rates, maturity or price of the Notes or similar changes or
solely for the inclusion of additional financial information, and other than
by an amendment or supplement which relates exclusively to an offering of
debt securities under the Registration Statements other than the Notes) or
there is filed with the Commission any document incorporated by reference
into the Prospectus (other than any Current Report on Form 8-K, unless the
Agents shall reasonably request based on disclosure included or omitted from
such Report) or (if required pursuant to the terms of a Terms Agreement) the
Company sells Notes to one or more Agents pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to the Agents and to
counsel to the Agents a written opinion of ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.,
counsel to the Company, or other counsel satisfactory to the Agents dated the
date of filing with the Commission of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form reasonably satisfactory to the Agents, of substantially the same
tenor as the opinion referred to in Sections 5(a)(1) hereof, but modified, as
necessary, to relate to the Registration Statements and the Prospectus as
amended and supplemented to the time of delivery of such opinion; or, in lieu
of such opinion, counsel last furnishing such opinion to the Agents shall
furnish the Agents with a letter substantially to the effect that the Agents
may rely on such last opinion to the same extent as though it was dated the
date of such letter authorizing reliance (except that statements in such last
opinion shall be deemed to relate to the Registration Statements and the
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Subject to the
provisions of Section 4(l) hereof, each time that the Registration Statements
or the Prospectus shall be amended or supplemented to include additional
financial information or there is filed with the Commission any document
incorporated by reference into the Prospectus which contains additional
financial information or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to one or more Agents pursuant to a Terms
Agreement, the Company shall cause Deloitte & Touche LLP, or other
independent certified public accountants reasonably satisfactory to the
Agents, forthwith to furnish the Agents with a letter, dated the date of
filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may
be, in form reasonably satisfactory to the Agents, of substantially the same
tenor as the letter referred to in Section 5(c) hereof but modified to relate
18
to the Registration Statements and Prospectus, as amended and supplemented to
the date of such letter, and with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the
Registration Statements or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, Deloitte &
Touche LLP, or other independent certified public accountants reasonably
satisfactory to the Agents, may limit the scope of such letter to the
unaudited financial statements included in such amendment or supplement
unless any other information included therein of an accounting, financial or
statistical nature is of such a nature that, in the reasonable judgment of
the Agents, such letter should cover such other information.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify
severally and hold harmless each Agent and each person, if any, who controls
each Agent within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statements (or any amendment thereto), or the
omission or alleged omission therefrom of a material fact
necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent
of the Company; and
(iii) against any and all reasonable expense whatsoever, as
incurred (including the reasonable fees and disbursements of
counsel chosen by an Agent), reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by the Agents expressly for use in the Registration Statements (or
any amendment thereto).
19
(b) Indemnification of Company. Each Agent severally agrees to
indemnify and hold harmless the Company, its managers, each of its officers
who signed the Registration Statements, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statements (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such Agent
expressly for use in the Registration Statements (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party of such commencement shall not relieve such indemnifying
party from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may assume the defense of the
indemnified party by retaining counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party 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 party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. In no event shall
the indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 8(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
SECTION 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8
hereof is for any reason held to be unavailable to or insufficient to hold
harmless the indemnified parties although applicable in accordance with its
terms, the Company and the Agents shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the
20
Company and the Agents, as incurred, in such proportions that each Agent is
responsible for that portion represented by the percentage that the total
commissions and underwriting discounts received by such Agent pursuant to
this Agreement to the date of such liability bears to the total sales price
from the sale of Notes sold to or through such Agent to the date of such
liability, and the Company is responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section, each person, if any, who controls an Agent within the
meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as an Agent, and each manager of the Company, each officer of
the Company who signed the Registration Statements, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statements and
all amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The reasonable fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel and of any
Calculation Agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Company's medium-term
note program and from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees,
and the reasonable fees and disbursements of counsel to the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statements and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto;
(h) The preparation, printing, reproducing and delivery to the
Agents of copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
21
(j) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of such expense by the Company;
(l) The cost of preparing, and providing any CUSIP or other
identification numbers for, the Notes; and
(m) The fees and expenses of any Depository (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of the Agents, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
Terms Agreement) may be terminated for any reason, at any time by either the
Company or the Agents on the giving of 30 days' written notice of such
termination to the other party hereto; provided, however, that the
termination of this Agreement by an Agent shall terminate this Agreement only
between such Agent and the Company and the Company's notice of termination as
to any one Agent shall terminate this Agreement only between itself and such
Agent.
(b) Termination of a Terms Agreement. The Agent or Agents party to
a Terms Agreement may terminate any Terms Agreement, immediately upon notice
to the Company, at any time prior to the Settlement Date relating thereto (i)
if there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Registration
Statements, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there shall have
occurred any outbreak or escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is
such as to make it, in the reasonable judgment of the Agent or Agents party
to such Terms Agreement (after consultation with the Company), impracticable
to market the Notes subject to such Terms Agreement or enforce contracts for
the sale of such Notes, or (iii) if trading in any securities of the Company
has been suspended by the Commission or a national securities exchange, or if
trading generally on either the American Stock Exchange or the New York Stock
Exchange shall have been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium shall have been
declared by federal or New York authorities or if a banking moratorium shall
have been declared by the relevant authorities in the country or countries of
origin of any foreign currency or
22
currencies in which the Notes subject to such Terms Agreement are denominated
or payable, or (iv) if the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company as of the date
of any Terms Agreement shall have been lowered or withdrawn since that date
or if any such rating agency shall have publicly announced since that date
that it has placed any debt securities of the Company on what is commonly
termed a "watch list" for possible downgrading, or (v) if there shall have
come to the Agent's or Agents' attention any facts that would cause such
Agent or Agents to believe that the Prospectus, at the time it was required
to be delivered to a purchaser of Notes subject to such Terms Agreement,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances existing at the time of such delivery, not misleading.
(c) General. In the event of any such termination, no party will
have any liability to any other party hereto, except that (i) each Agent
shall be entitled to any commission earned in accordance with the third
paragraph of Section 3(a) hereof, (ii) if at the time of termination (a) the
Agents shall own any Notes purchased pursuant to a Terms Agreement with the
intention of reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the purchaser or its
agent of the Note or Notes relating thereto has not occurred, the obligations
set forth in Section 5 hereof and the covenants set forth in Sections 4 and 7
hereof shall remain in effect until such Notes are so resold or delivered, as
the case may be, and (iii) the covenant set forth in Section 4(h) hereof, the
indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
and the provisions of Sections 10, 11 and 15 hereof shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the
terms and provisions hereof shall be in writing, either delivered by hand, by
mail or by telex, by telecopier or by telegram, and any such notice shall be
effective when received at the address specified below.
If to the Company:
Chrysler Financial Company L.L.C.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Assistant Secretary
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agents:
[Names of Agents]
[Addresses of Agents]
[Telecopy numbers of Agents]
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
23
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties
shall be governed by and construed in accordance with the laws of the State
of New York applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon
the Agents and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and managers
referred to in Sections 8 and 9 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Notes shall be deemed to be a successor by reason merely of
such purchase.
SECTION 16. Counterparts.
This Agreement may be executed in several counterparts, each of
which shall be deemed an original hereof.
SECTION 17. Captions.
The captions in this Agreement are for convenience of reference
only and shall not define or limit any of the terms or the provisions hereof.
24
If the foregoing is in accordance with the Agents' understanding
of our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agents and the Company in accordance with its terms.
Very truly yours,
CHRYSLER FINANCIAL COMPANY L.L.C.
By: _____________________________
Name:
Title
Accepted:
NAME OF AGENTS
By: ____________________________
Name
Title:
NAME OF AGENTS
By: ____________________________
Name:
Title:
NAME OF AGENTS
By: ____________________________
Name:
Title:
25
Exhibit A
The following terms, if applicable, shall be agreed to by the
Agents and the Company pursuant to each Terms Agreement:
Principal Amount: $___
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: __%
Agent's Discount or Commission:
Settlement Date and Time:
Additional Terms:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Regular Record Dates:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
If Redeemable:
Redemption Date:
Initial Redemption Percentage
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Dates:
Repayment Price:
26
Currency:
Specified Currency (if other than U.S. dollars)
Minimum Denominations:
Also, agreement as to whether the following will be required:
Officers' Certificates pursuant to Section 7(b) of the
Distribution Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution
Agreement.
27
SCHEDULE A
As compensation for the services of the Agents hereunder, the
Company shall pay the related Agent, on a discount basis, a commission for
the sale of each Note by such Agent equal to the principal amount of such
Note multiplied by the appropriate percentage set forth below:
MATURITY RANGES
PERCENT OF
PRINCIPAL AMOUNT
-------------------------------------------------------- ----------------
From 9 months to less than 1 year....................... [ ]
From 1 year to less than 18 months...................... [ ]
From 18 months to less than 2 years..................... [ ]
From 2 years to less than 3 years....................... [ ]
From 3 years to less than 4 years....................... [ ]
From 4 years to less than 5 years....................... [ ]
From 5 years to less than 6 years....................... [ ]
From 6 years to less than 7 years....................... [ ]
From 7 years to less than 8 years....................... [ ]
From 8 years to less than 9 years....................... [ ]
From 9 years to less than 10 years...................... [ ]
From 10 years to less than 15 years..................... [ ]
From 15 years to less than 20 years..................... [ ]
From 20 years to 30 years............................... [ ]
Beyond 30 years......................................... To be negotiated at
time of issuance
A-1
SCHEDULE B
SUBSIDIARIES
OF
CHRYSLER FINANCIAL COMPANY L.L.C.
Chrysler Insurance Company (Michigan)
Chrysler Credit Canada Ltd. (Canada)
Chrysler Capital Company L.L.C. (Delaware)
B-1