EXHIBIT 1.1
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Execution Copy
DAIMLERCHRYSLER AUTO TRUST 2006-B
5.30% ASSET BACKED NOTES, CLASS A-2
5.33% ASSET BACKED NOTES, CLASS A-3
5.38% ASSET BACKED NOTES, CLASS A-4
5.49% ASSET BACKED NOTES, CLASS B
DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS LLC
UNDERWRITING AGREEMENT
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May 11, 2006
Citigroup Global Markets Inc.
as Representative of the Several Underwriters
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. DaimlerChrysler Financial Services Americas LLC, a
Michigan limited liability company ("DCFS" or the "Depositor"), proposes to
cause DaimlerChrysler Auto Trust 2006-B (the "Trust") to issue and sell
$450,000,000 principal amount of its 5.30% Asset Backed Notes, Class A-2 (the
"Class A-2 Notes"), $570,000,000 principal amount of its 5.33% Asset Backed
Notes, Class A-3 (the "Class A-3 Notes"), $134,700,000 principal amount of its
5.38% Asset Backed Notes, Class A-4 (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 "Class A
Notes"), and $45,300,000 principal amount of its 5.49% Asset Backed Notes,
Class B (the "Class B Notes" and, together with the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes, the "Offered Notes"), to the several
Underwriters named in Schedule I hereto (collectively, the "Underwriters"),
for whom you are acting as representative (the "Representative" or "you"). The
Trust also will issue $312,200,000 principal amount of its 5.1201% Asset
Backed Notes, Class A-1 (the "Class A-1 Notes" and, together with the Offered
Notes, the "Notes"), which Class A-1 Notes will be purchased by the Depositor
on the Closing Date (as defined below). The assets of the Trust will include,
among other things, a pool of motor vehicle retail installment sale contracts
(the "Receivables") and the related collateral. The Receivables will be sold
to the Trust by the Depositor. The Receivables will be serviced for the Trust
by DCFS (in such capacity, the "Servicer"). The Notes will be issued pursuant
to an Indenture to be dated as of May 1, 2006 (as amended and supplemented
from time to time, the "Indenture"), between the Trust and Citibank, N.A., as
indenture trustee (the "Indenture Trustee").
Simultaneously with the issuance and sale of the Notes as contemplated
herein, DaimlerChrysler Retail Receivables LLC, a Michigan limited liability
company (the "Company") will acquire the beneficial interest in the Trust,
pursuant to the Amended and Restated Trust Agreement to be dated as of May 1,
2006 (as amended and supplemented from time to time, the "Trust Agreement"),
among the Depositor, the Company, and Chase Bank USA, National Association, as
owner trustee (the "Owner Trustee"). Such beneficial interest will be entitled
to the residual cash flow on the Receivables that is not required to be
applied to payments on the Notes and may be in the form of certificates issued
by the Trust.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Sale and Servicing Agreement to be dated as
of May 1, 2006 (as amended and supplemented from time to time, the "Sale and
Servicing Agreement"), between the Trust and DCFS, as Depositor and Servicer,
or, if not defined therein, in the Indenture or the Trust Agreement.
At or prior to the time when sales to purchasers of the Offered Notes
were first made by the Underwriters, which was approximately 2:50 p.m. on May
11, 2006 (the "Time of Sale"), the Depositor had prepared the following
information (collectively, the "Time of Sale Information"): the Preliminary
Prospectus Supplement dated May 11, 2006 to the Prospectus (as defined below)
(together, with information referred to under the caption "Static Pool Data"
therein regardless of whether it is deemed a part of the Registration
Statement (as defined below) or Prospectus, the "Preliminary Prospectus"). If,
at or subsequent to the Time of Sale and prior to the Closing Date (as defined
below), such information included an untrue statement of material fact 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, and as a result investors in the Offered Notes may terminate their
old "Contracts of Sale" (within the meaning of Rule 159 under the Securities
Act of 1933, as amended (the "Securities Act")) for any Offered Notes and the
Underwriters enter into new Contracts of Sale with investors in the Offered
Notes, then "Time of Sale Information" will refer to the information conveyed
to investors at the time of entry into the first such new Contract of Sale, in
an amended Preliminary Prospectus approved by the Depositor and the
Representative that corrects such material misstatements or omissions (a
"Corrected Prospectus") and "Time of Sale" will refer to the time and date on
which such new Contracts of Sale were entered into.
2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (No. 333-127963) relating to
asset backed notes and certificates, including the Offered Notes, has been
filed by Depositor with the Securities and Exchange Commission (the
"Commission") and has become effective, has been amended by various
post-effective amendments, the last of which is Post-Effective Amendment No. 4
that became effective on January 31, 2006, and is still effective as of the
date hereof under the Securities Act. The Depositor proposes to file with the
Commission pursuant to Rule 424(b)
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of the rules and regulations of the Commission under the Securities Act (the
"Rules and Regulations") a prospectus supplement dated May 11, 2006 (together
with information referred to under the caption "Static Pool Data" therein
regardless of whether it is deemed a part of the Registration Statement or
Prospectus, the "Prospectus Supplement") to the prospectus dated May 11, 2006,
relating to the Offered Notes and the method of distribution thereof. Copies
of such registration statement, any amendment or supplement thereto, such
prospectus, the Preliminary Prospectus and the Prospectus Supplement have been
delivered to you. Such registration statement, including exhibits thereto, and
such prospectus, as amended or supplemented to the date hereof, and as further
supplemented by the Prospectus Supplement, are hereinafter referred to as the
"Registration Statement" and the "Prospectus," respectively. The conditions to
the use of a registration statement on Form S-3 under the Securities Act have
been satisfied. The Depositor has filed the Preliminary Prospectus and it has
done so within the applicable period of time required under the Securities Act
and the Rules and Regulations.
(b) The Registration Statement, at the time it became effective, any
post-effective amendment thereto, at the time it became effective, and the
Prospectus, as of the date of the Prospectus Supplement, complied and on the
Closing Date will comply in all material respects with the applicable
requirements of the Securities Act and the Rules and Regulations and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules
and regulations of the Commission thereunder. The Registration Statement, as
of the applicable effective date as to each part of the Registration Statement
pursuant to Rule 430B(f)(2) and any amendment thereto, did not include any
untrue statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Preliminary Prospectus, as of its date and as of the Time
of Sale, did not contain an untrue statement of a material fact and did not
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. The Prospectus, as of the date of the Prospectus Supplement and as
of the Closing Date, does not and will not contain any untrue statement of a
material fact and did not and will not omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The representations
and warranties in the three preceding sentences do not apply to (i) that part
of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) of the Indenture Trustee under the
Trust Indenture Act or (ii) that information contained in or omitted from the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with the Underwriters' Information
(as defined below). The Indenture has been qualified under the Trust Indenture
Act. "Underwriters' Information" consists solely of the second paragraph under
the caption "Underwriting" in the Preliminary Prospectus and the second
paragraph and the following table under the caption "Underwriting" in the
Prospectus Supplement.
(c) The Time of Sale Information, at the Time of Sale, did not, and at
the Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact
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necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Depositor makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with the Underwriters'
Information.
(d) This Agreement has been duly authorized, executed and delivered by
the Depositor.
(e) The Depositor's assignment and delivery of the Receivables to the
Trust will vest in the Trust all of the Depositor's right, title and interest
therein, subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(f) The Trust's assignment of the Receivables to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the benefit
of the Noteholders, a first priority perfected security interest therein,
subject to no prior lien, mortgage, security interest, pledge, adverse claim,
charge or other encumbrance.
(g) None of the Depositor, the Company or anyone acting on behalf of the
Depositor or the Company has taken any action that would require qualification
of the Trust Agreement under the Trust Indenture Act or require registration
of the Depositor, the Company or the Trust under the Investment Company Act of
1940, as amended (the "Investment Company Act"), nor will the Depositor or the
Company act, nor has either of them authorized, nor will either of them
authorize, any person to act in such a manner.
(h) The Depositor is not, and on the date on which the first bona fide
offer of the Offered Notes was made was not, an "ineligible issuer," as
defined in Rule 405 under the Securities Act.
3. [Reserved]
4. Purchase, Sale, and Delivery of the Offered Notes. On the basis of
the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Depositor agrees to cause
the Trust to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Trust: (i) at a purchase price of
99.83357 % of the principal amount thereof, the respective principal amount of
the Class A-2 Notes set forth opposite the name of such Underwriter in
Schedule I hereto, (ii) at a purchase price of 99.79862% of the principal
amount thereof, the respective principal amount of the Class A-3 Notes set
forth opposite the name of such Underwriter in Schedule I hereto, (iii) at a
purchase price of 99.73217% of the principal amount thereof, the respective
principal amount of the Class A-4 Notes set forth opposite the name of such
Underwriter in Schedule I hereto and (iv) at a purchase price of 99.63634% of
the principal amount thereof, the respective principal amount of the Class B
Notes, if any, set forth opposite the name of such Underwriter in Schedule I
hereto (it being understood that only Citigroup Global Markets Inc. will
purchase
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Class B Notes). Delivery of and payment for the Offered Notes shall be made at
the office of Sidley Austin LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
on May 18, 2006 (the "Closing Date"). Delivery of the Offered Notes shall be
made against payment of the purchase price in immediately available funds
drawn to the order of the Depositor. The Offered Notes to be so delivered will
be represented initially by one or more Notes registered in the name of Cede &
Co., the nominee of The Depository Trust Company ("DTC"). The interests of
beneficial owners of the Offered Notes will be represented by book entries on
the records of DTC and participating members thereof. Definitive Notes will be
available only under limited circumstances.
5. Offering by Underwriters. It is understood that, after the
Registration Statement becomes effective, the Underwriters propose to offer
the Offered Notes for sale to the public (which may include selected dealers),
as set forth in the Prospectus.
6. Written Communications.
(a) The following terms have the specified meanings for purposes of this
Agreement:
(i) "Free Writing Prospectus" means and includes any information
relating to the Offered Notes disseminated by the Depositor or any
Underwriter that constitutes a "free writing prospectus" within the
meaning of Rule 405 under the Securities Act.
(ii) "Issuer Information" means (1) the information contained in
any Underwriter Free Writing Prospectus which information is also
included in the Preliminary Prospectus (other than Underwriters'
Information) and (2) information in the Preliminary Prospectus that is
used to calculate or create any Derived Information.
(iii) "Derived Information" means such written information
regarding the Offered Notes as is disseminated by any Underwriter to a
potential investor, which information is neither (A) Issuer Information
nor (B) contained in (1) the Registration Statement, the Preliminary
Prospectus, the Prospectus Supplement, the Prospectus or any amendment
or supplement to any of them, taking into account information
incorporated therein by reference (other than information incorporated
by reference from any information regarding the Offered Notes that is
disseminated by any Underwriter to a potential investor) or (2) any
computer tape in respect of the Notes or the related receivables
furnished by the Depositor to any Underwriter.
(b) The Depositor will not disseminate to any potential investor any
information relating to the Offered Notes that constitutes a "written
communication" within the meaning of Rule 405 under the Securities Act, other
than the Time of Sale Information and the Prospectus, unless the Depositor has
obtained the prior consent of the Representative.
(c) Neither the Depositor nor any Underwriter shall disseminate or file
with the Commission any information relating to the Notes in reliance on Rule
167 or 426 under the
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Securities Act, nor shall the Depositor or any Underwriter disseminate any
Underwriter Free Writing Prospectus (as defined below) "in a manner reasonably
designed to lead to its broad unrestricted dissemination" within the meaning
of Rule 433(d) under the Securities Act.
(d) Each Underwriter Free Writing Prospectus shall bear the following
legend, or a substantially similar legend that complies with Rule 433 under
the Securities Act:
The Depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
Depositor has filed with the SEC for more complete information
about the Depositor, the issuing entity, and this offering. You
may get these documents for free by visiting ▇▇▇▇▇ on the SEC Web
site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the Depositor, any underwriter
or any dealer participating in the offering will arrange to send
you the prospectus if you request it by calling toll-free
1-877-858-5407.
(e) In the event the Depositor becomes aware that, as of any Time of
Sale, any Time of Sale Information with respect thereto contains or contained
any untrue statement of material fact or omits or omitted to state a material
fact necessary in order to make the statements contained therein (when read in
conjunction with all Time of Sale Information) in the light of the
circumstances under which they were made, not misleading (a "Defective
Prospectus"), the Depositor shall promptly notify the Representative of such
untrue statement or omission no later than one business day after discovery
and the Depositor shall, if requested by the Representative, prepare and
deliver to the Underwriters a Corrected Prospectus.
(f) Each Underwriter represents, warrants, covenants and agrees with the
Depositor that:
(i) Other than the Preliminary Prospectus and the Prospectus, it
has not made, used, prepared, authorized, approved or referred to and
will not prepare, make, use, authorize, approve or refer to any "written
communication" (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the
Notes, including but not limited to any "ABS informational and
computational materials" as defined in Item 1101(a) of Regulation AB
under the Securities Act; provided, however, that (i) each Underwriter
may prepare and convey one or more "written communications" (as defined
in Rule 405 under the Securities Act) containing no more than the
following: (1) information included in the Preliminary Prospectus with
the consent of the Depositor (except as provided in clauses (2) through
(4) below), (2) information relating to the class, size, rating, price,
CUSIPS, coupon, yield, spread, benchmark, status and/or legal maturity
date of the Notes, the weighted average life, expected final payment
date, trade date, settlement date and payment window of one or more
classes of Notes and the underwriters for one or more classes of the
Offered Notes, (3) the eligibility of the Offered Notes to be purchased
by ERISA plans and (4) a column
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or other entry showing the status of the subscriptions for the Offered
Notes (both for the issuance as a whole and for each Underwriter's
retention) and/or expected pricing parameters of the Offered Notes (each
such written communication, an "Underwriter Free Writing Prospectus");
(ii) unless otherwise consented to by the Depositor, no such Underwriter
Free Writing Prospectus shall be conveyed if, as a result of such
conveyance, the Depositor or the Trust shall be required to make any
registration or other filing solely as a result of such Underwriter Free
Writing Prospectus pursuant to Rule 433(d) under the Securities Act
other than the filing of the final terms of the Offered Notes pursuant
to Rule 433(d)(5) of the Securities Act; and (iii) each Underwriter will
be permitted to provide confirmations of sale.
(ii) In disseminating information to prospective investors, it has
complied and will continue to comply fully with the Rules and
Regulations, including but not limited to Rules 164 and 433 under the
Securities Act and the requirements thereunder for filing and retention
of Free Writing Prospectuses, including retaining any Underwriter Free
Writing Prospectuses they have used but which are not required to be
filed for the required period.
(iii) Prior to entering into any Contract of Sale, it shall convey
the Time of Sale Information to the prospective investor. The
Underwriter shall maintain sufficient records to document its conveyance
of the Time of Sale Information to the potential investor prior to the
formation of the related Contract of Sale and shall maintain such
records as required by the Rules and Regulations.
(iv) If a Defective Prospectus has been corrected with a Corrected
Prospectus, it shall (A) deliver the Corrected Prospectus to each
investor with whom it entered into a Contract of Sale and that received
the Defective Prospectus from it prior to entering into a new Contract
of Sale with such investor, (B) notify such investor that the prior
Contract of Sale with the investor, if any, has been terminated and of
the investor's rights as a result of such agreement and (C) provide such
investor with an opportunity to agree to purchase the Offered Notes on
the terms described in the Corrected Prospectus.
(v) Immediately following the use of any Underwriter Free Writing
Prospectus containing any "issuer information" as defined in Rule
433(h)(1) and footnote 271 of the Commission's Securities Offering
Reform Release No. 33-8591 of the Securities Act, it has provided the
Depositor a copy of such Underwriter Free Writing Prospectus, unless
such "issuer information" consists of the terms of the Notes or such
information is not the final information to be included in the
Prospectus Supplement.
(g) In the event that any Underwriter shall incur any costs to any
investor in connection with the reformation of the Contract of Sale with such
investor that received a Defective Prospectus, the Depositor agrees to
reimburse such Underwriter for such costs.
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(h) The Depositor shall file with the Commission any Free Writing
Prospectus delivered to investors in accordance with this Section 6 as the
Depositor is required to file under the Securities Act and the Rules and
Regulations, and to do so within the applicable period of time required under
the Securities Act and the Rules and Regulations. The Depositor shall file
with the Commission the final terms of the Offered Notes pursuant to Rule
433(d)(5) of the Securities Act.
7. Covenants of the Depositor. The Depositor covenants and agrees with
each of the Underwriters that:
(a) Prior to the termination of the offering of the Offered Notes, the
Depositor will not file any amendment of the Registration Statement or
supplement to the Preliminary Prospectus or the Prospectus unless the
Depositor has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, the Depositor will file the
Prospectus, properly completed, and any supplement thereto, with the
Commission pursuant to and in accordance with the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to you of such timely filing.
(b) The Depositor will advise you promptly of any proposal to amend or
supplement the Registration Statement as filed or the Preliminary Prospectus
or the Prospectus and will not effect such amendment or supplement without
your consent, which consent will not unreasonably be withheld; the Depositor
will also advise you promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Preliminary
Prospectus or the Prospectus or for any additional information; and the
Depositor also will advise you promptly of the effectiveness of any amendment
to the Registration Statement filed after Post-Effective Amendment No. 4, when
the Preliminary Prospectus and the Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b) and of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threat of any proceeding for
that purpose, and the Depositor will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible the lifting
of any issued stop order.
(c) If, at any time when a prospectus relating to the Offered Notes is
required to be delivered under the Securities Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time
to amend the Registration Statement or supplement the Prospectus to comply
with the Securities Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act") or the respective rules thereunder, the Depositor
promptly will notify you and will prepare and file, or cause to be prepared
and filed, with the Commission, subject to the first sentence of paragraph (a)
of this Section 7, an amendment or supplement that will correct such statement
or omission or effect
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such compliance. Any such filing shall not operate as a waiver or limitation
of any right of any Underwriter hereunder.
(d) As soon as practicable, but not later than fourteen months after the
Closing Date, the Depositor will cause the Trust to make generally available
to holders of the Offered Notes an earnings statement of the Trust covering a
period of at least twelve months beginning after the Closing Date that will
satisfy the provisions of Section 11(a) of the Securities Act.
(e) The Depositor will furnish to the Underwriters copies of the
Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Underwriters request.
(f) The Depositor will arrange for the qualification of the Offered
Notes for sale under the laws of such jurisdictions in the United States as
you may reasonably designate and will continue such qualifications in effect
so long as required for the distribution.
(g) For a period from the date of this Agreement until the retirement of
the Offered Notes or until such time as the Underwriters shall cease to
maintain a secondary market in the Offered Notes, whichever occurs first, the
Depositor will deliver to you the annual statements of compliance, the
assessments of compliance with servicing criteria and the annual independent
certified public accountants' attestation reports furnished to the Indenture
Trustee or the Owner Trustee pursuant to the Sale and Servicing Agreement, as
soon as such statements and reports are furnished to the Indenture Trustee or
the Owner Trustee.
(h) So long as any of the Offered Notes is outstanding, the Depositor
will furnish to you (i) as soon as practicable after the end of the fiscal
year all documents required to be distributed to holders of the Offered Notes
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 Depositor filed with any government or regulatory authority
that is otherwise publicly available, as you may reasonably request.
(i) On or before the Closing Date, DCFS shall cause its computer records
relating to the Receivables to be marked to show the Trust's absolute
ownership of the Receivables and, from and after the Closing Date, DCFS shall
not take any action inconsistent with the Trust's ownership of such
Receivables, other than as permitted by the Sale and Servicing Agreement.
(j) To the extent, if any, that the ratings provided with respect to the
Offered Notes by the rating agency or agencies that initially rate the Offered
Notes are conditional upon the furnishing of documents or the taking of any
other actions by the Depositor, the Depositor shall furnish such documents and
take any such other actions.
(k) For the period beginning on the date of this Agreement and ending on
the Closing Date, unless waived by the Underwriters, neither the Depositor nor
any trust originated, directly
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or indirectly, by the Depositor will offer to sell or sell notes (other than
the Notes) collateralized by, or certificates evidencing an ownership interest
in, receivables generated pursuant to retail automobile or light duty truck
installment sale contracts in such a manner as would constitute a public
offering to persons in the United States.
8. Payment of Expenses. The Depositor will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the preparation of this Agreement, (iii) the
preparation, issuance and delivery of the Offered Notes to the Underwriters,
(iv) the fees and disbursements of the Depositor's counsel and accountants,
(v) the qualification of the Offered Notes under securities laws in accordance
with the provisions of Section 7(f), including filing fees and the fees and
disbursements of counsel for you in connection therewith and in connection
with the preparation of any blue sky or legal investment survey, (vi) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, (vii) the
printing and delivery to the Underwriters of copies of any blue sky or legal
investment survey prepared in connection with the Offered Notes, (viii) any
fees charged by rating agencies for the rating of the Notes, (ix) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., and (x) the fees and expenses of
Sidley Austin LLP in its role as counsel to the Trust incurred as a result of
providing the opinions required by Section 9(f) and the second sentence of
Section 9(g) hereof.
9. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Offered Notes will be subject to
the accuracy of the representations and warranties on the part of the
Depositor herein, to the accuracy of the statements of officers of the
Depositor made pursuant to the provisions hereof, to the performance by the
Depositor of its obligations hereunder and to the following additional
conditions precedent:
(a) The Prospectus and any supplements thereto shall have been filed
with the Commission in accordance with the Rules and Regulations and Section
7(a) hereof, and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge
of the Depositor or you, shall be contemplated by the Commission or by any
authority administering any state securities or blue sky law.
(b) On or prior to the Closing Date, you shall have received a letter,
dated as of the Closing Date, of KPMG LLP, certified public accountants,
substantially in the form of the drafts to which you have previously agreed
and otherwise in form and substance satisfactory to you and your counsel.
(c) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment
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thereto) and the Prospectus (exclusive of any supplement thereto), there shall
not have occurred (i) any change or any development involving a prospective
change in or affecting particularly the business or properties of the Trust,
the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG
which, in the judgment of the Underwriters, materially impairs the investment
quality of the Offered Notes or makes it impractical or inadvisable to market
the Offered Notes; (ii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange; (iii) any suspension of trading of any securities of
DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the
Depositor on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by federal or New York authorities; (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency or any change in the financial markets if,
in the judgment of the Underwriters, the effect of any such outbreak,
escalation, declaration, calamity, emergency or any change makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Offered Notes or (vi) a material disruption has occurred in
securities settlement or clearance services in the United States.
(d) You shall have received an opinion of in-house counsel in the office
of the General Counsel of DCFS and the Company, addressed to you and the
Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, to the effect that:
(i) DCFS 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 its properties and
conduct its business as presently conducted by it, and to enter into and
perform its obligations under this Agreement, the Sale and Servicing
Agreement, the Purchase Agreement, the Trust Agreement, and the
Administration Agreement, and had at all times, and now has, the power,
authority and legal right to acquire, own, sell and service the
Receivables.
(ii) 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 its properties
and conduct its business as presently conducted by it and to enter into
and perform its obligations under the Trust Agreement and the Purchase
Agreement, and had at all times, and now has, the power, authority and
legal right to acquire, own, sell and hold the excess cash flow from the
Reserve Account and the Fixed Value Payments.
(iii) Each of DCFS and the Company is duly qualified to do
business and is in good standing, and has obtained all necessary
licenses and approvals, in each jurisdiction in which failure to qualify
or to obtain such licenses or approvals would render any Receivable
unenforceable by the Depositor, the Owner Trustee or the Indenture
Trustee.
11
(iv) The direction by the Depositor to the Owner Trustee to
authenticate the Certificates has been duly authorized by the Depositor
and, when the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the Trust Agreement
and delivered, the Certificates will be duly issued and entitled to the
benefits and security afforded by the Trust Agreement, subject as to the
enforcement of remedies (x) to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and (y) to general principles of equity (regardless of
whether the enforcement of such remedies is considered in a proceeding
in equity or at law).
(v) The direction by the Depositor to the Indenture Trustee to
authenticate the Notes has been duly authorized by the Depositor and,
when the Notes have been duly executed and delivered by the Owner
Trustee and when authenticated by the Indenture Trustee in accordance
with the Indenture and delivered and paid for pursuant to this
Agreement, the Notes will be duly issued and entitled to the benefits
and security afforded by the Indenture, subject as to the enforcement of
remedies (x) to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and (y) to general principles of equity (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or
at law).
(vi) The Purchase Agreement, the Trust Agreement, the Sale and
Servicing Agreement and the Administration Agreement have been duly
authorized, executed and delivered by DCFS, and are legal, valid and
binding obligations of DCFS enforceable against DCFS in accordance with
their terms, except (x) 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 (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.
(vii) This Agreement has been duly authorized, executed and
delivered by DCFS.
(viii) The Purchase Agreement and the Trust Agreement have been
duly authorized, executed and delivered by the Company and are the
legal, valid and binding obligations of the Company enforceable against
the Company in accordance with their terms, except (x) 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 (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.
12
(ix) Neither the transfer of the Receivables from the Depositor to
the Trust, nor the assignment of the Owner Trust Estate to the Trust,
nor the grant of the security interest in the Collateral to the
Indenture Trustee pursuant to the Indenture, nor the execution and
delivery of this Agreement, the Purchase Agreement, the Trust Agreement,
the Administration Agreement, or the Sale and Servicing Agreement by
DCFS, nor the execution and delivery of the Trust Agreement and the
Purchase Agreement by the Company, nor the consummation of any
transactions contemplated in this Agreement, the Purchase Agreement, the
Trust Agreement, the Indenture, the Administration Agreement or the Sale
and Servicing Agreement (such agreements, excluding this Agreement,
being, collectively, the "Basic Documents"), nor the fulfillment of the
terms thereof by DCFS, the Company or the Trust, as the case may be,
will conflict with, or result in a material breach, violation or
acceleration of, or constitute a default under, any term or provision of
the articles of organization or operating agreement of DCFS or the
Company, or of any indenture or other material agreement or material
instrument to which DCFS or the Company is a party or by which either of
them is bound, or result in a violation of or contravene the terms of
any statute, order or regulation applicable to DCFS or the Company of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over either of them.
(x) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry,
threatened before any court, administrative agency or other tribunal (1)
asserting the invalidity of the Trust or any of the Basic Documents, (2)
seeking to prevent the consummation of any of the transactions
contemplated by any of the Basic Documents or the execution and delivery
thereof, (3) that might materially and adversely affect the performance
by DCFS of its obligations under, or the validity or enforceability of,
this Agreement, the Purchase Agreement, the Trust Agreement, the Sale
and Servicing Agreement, or the Administration Agreement, or (4) that
might materially and adversely affect the performance by the Company of
its obligations under, or the validity or enforceability of, the
Purchase Agreement or the Trust Agreement.
(xi) To the best knowledge of such counsel and except as set forth
in the Prospectus (and any supplement thereto), no default exists and no
event has occurred which, with notice, lapse of time or both, would
constitute a default in the due performance and observance of any term,
covenant or condition of any material agreement to which the Depositor
or the Company is a party or by which either of them is bound, which
default has or would have a material adverse effect on the financial
condition, earnings, prospects, business or properties of the Depositor
and its subsidiaries, taken as a whole.
(xii) Nothing has come to such counsel's attention that would lead
such counsel to believe that the representations and warranties of (x)
the Company contained in the Purchase Agreement and the Trust Agreement
are other than as stated therein or
13
(y) DCFS contained in this Agreement, the Trust Agreement, the Purchase
Agreement or the Sale and Servicing Agreement are other than as stated
therein.
(xiii) The Depositor is the sole owner of all right, title and
interest in, and has good and marketable title to, the Receivables and
the other property to be transferred by it to the Trust. The assignment
of the Receivables, all documents and instruments relating thereto and
all proceeds thereof to the Trust, pursuant to the Sale and Servicing
Agreement, vests in the Trust all interests that are purported to be
conveyed thereby, free and clear of any liens, security interests or
encumbrances except as specifically permitted pursuant to the Sale and
Servicing Agreement or any other Basic Document.
(xiv) Immediately prior to the transfer of the Receivables to the
Trust, the Depositor's interest in the Receivables, the security
interests in the Financed Vehicles securing the Receivables and the
proceeds of each of the foregoing was perfected and constituted a
perfected first priority interest therein.
(xv) The Indenture constitutes a grant by the Trust to the
Indenture Trustee of a valid security interest in the Receivables, the
security interests in the Financed Vehicles securing the Receivables and
the proceeds of each of the foregoing, which security interest will be
perfected upon the filing of the UCC-1 financing statements with the
Secretary of State of the State of Delaware and will constitute a first
priority perfected security interest therein. No filing or other action,
other than the filing of the UCC-1 financing statements with the
Secretary of State of the State of Delaware referred to above, is
necessary to perfect and maintain the interest or the security interest
of the Indenture Trustee in the Receivables, the security interests in
the Financed Vehicles securing the Receivables and the proceeds of each
of the foregoing against third parties.
(xvi) The Receivables are tangible chattel paper as defined in the
UCC.
(xvii) The Sale and Servicing Agreement, the Trust Agreement, the
Indenture, the Purchase Agreement and the Administration Agreement
conform in all material respects with the descriptions thereof contained
in the Prospectus (and any supplement thereto).
(xviii) The statements in the Prospectus under the headings "Risk
Factors -- Trusts May Not Have a Perfected Security Interest in Certain
Financed Vehicles" and "-- Insolvency of the Depositor May Result in
Delays, Reductions or Loss of Payments to Securityholders" and "Certain
Legal Aspects of the Receivables", to the extent they constitute matters
of law or legal conclusions with respect thereto, have been reviewed by
such counsel and are correct in all material respects.
(xix) The statements contained in the Prospectus and any
supplement thereto under the headings "Payments on the Notes", "Payments
on the Securities", "Form of
14
Securities and Transfers", "Principal Documents", "Sale Provisions",
"Servicing" and "The Indenture", insofar as such statements constitute a
summary of the Notes, the Indenture, the Administration Agreement, the
Purchase Agreement, the Sale and Servicing Agreement and the Trust
Agreement, constitute a fair summary of such documents.
(xx) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated in the Basic Documents,
except such filings with respect to the transfer of the Receivables to
the Trust pursuant to the Sale and Servicing Agreement, the grant of a
security interest in the Collateral to the Indenture Trustee pursuant to
the Indenture and such other approvals as have been obtained and filings
as have been made.
(xxi) Such counsel is familiar with the Depositor's standard
operating procedures relating to the Depositor's acquisition of a
perfected first priority security interest in the vehicles financed by
the Depositor pursuant to retail automobile and light duty truck
installment sale contracts in the ordinary course of the Depositor's
business. Assuming that the Depositor's standard procedures are followed
with respect to the perfection of security interests in the Financed
Vehicles (and such counsel has no reason to believe that the Depositor
has not followed or will not continue to follow its standard procedures
in connection with the perfection of security interests in the Financed
Vehicles), the Depositor has acquired or will acquire a perfected first
priority security interest in the Financed Vehicles.
(xxii) All actions required to be taken and all filings required
to be made under the Securities Act and the Exchange Act prior to the
sale of the Notes have been duly taken or made. The Class A-1 Notes are
not required to be registered under the Securities Act.
(xxiii) The Trust Agreement is not required to be qualified under
the Trust Indenture Act and the Trust is not required to be registered
under the Investment Company Act.
(xxiv) The Indenture has been duly qualified under the Trust
Indenture Act.
(xxv) The Depositor is not, and will not as a result of the offer
and sale of the Notes as contemplated in the Prospectus (and any
supplement thereto) and this Agreement become, an "investment company"
as defined in the Investment Company Act or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act.
15
(xxvi) To the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or threatened
that are required to be disclosed in the Registration Statement, other
than those disclosed therein.
(xxvii) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement 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.
(xxviii) The Registration Statement has become effective under the
Securities Act, any required filing of the Preliminary Prospectus and
the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule
424(b) and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, and the Registration
Statement and the Prospectus, and each amendment or supplement thereto,
as of their respective effective or issue dates, complied as to form in
all material respects with the requirements of the Securities Act, the
Exchange Act, the Trust Indenture Act and the Rules and Regulations.
(xxix) Such counsel has examined the Registration Statement and
the Prospectus and nothing has come to such counsel's attention that
would lead such counsel to believe that the Registration Statement
(other than the financial statements and other financial and statistical
information contained or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which such counsel need not express
any view), at the time the Registration Statement initially became
effective and at the time Post-Effective Amendment No. 4 thereto became
effective, contained any 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; that the Registration
Statement (other than the financial statements and other financial and
statistical information contained or incorporated by reference therein
or omitted therefrom, as to which such counsel need not express any
view), at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2), 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; that the
Prospectus (other than the financial statements and other financial and
statistical information contained or incorporated by reference therein
or omitted therefrom and the Form T-1, as to which such counsel need
express no view), at the date thereof and at the Closing Date, included
or includes any untrue statement of a
16
material fact or omitted or omits 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 or that the Preliminary
Prospectus (other than the financial statements and other financial and
statistical information contained or incorporated by reference therein
or omitted therefrom, as to which such counsel need express no view), as
of the Time of Sale, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light of circumstances under which they were
made, not misleading.
(xxx) The Trust has been duly formed and is validly existing as a
statutory trust and is in good standing under the laws of the State of
Delaware, with full power and authority to execute, deliver and perform
its obligations under the Sale and Servicing Agreement, the Indenture,
the Administration Agreement and the Notes.
(xxxi) The Indenture, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized and, when duly
executed and delivered by the Owner Trustee, will constitute the legal,
valid and binding obligations of the Trust, enforceable against the
Trust in accordance with their terms, except (x) 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 (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.
(e) You shall have received an opinion of in-house tax counsel in the
office of Tax Affairs of DCFS, addressed to you and the Indenture Trustee,
dated the Closing Date and satisfactory in form and substance to you and your
counsel, to the effect that:
(i) the Trust will not be characterized as an association (or a
publicly traded partnership) taxable as a corporation for Michigan tax
purposes; and
(ii) if the Notes are treated as debt for federal income tax
purposes, then for Michigan income and single business tax purposes, the
Notes will be characterized as debt.
(f) You shall have received an opinion addressed to you of Sidley Austin
LLP, in its capacity as federal tax counsel to the Trust, to the effect that
the statements in the Base Prospectus under the headings "Summary - Tax
Status" and "Certain Federal Income Tax Consequences" and in the Prospectus
Supplement under the heading "Federal Income Tax Consequences" accurately
describe the material federal income tax consequences to holders of the Notes.
17
(g) You shall have received an opinion addressed to you of Sidley Austin
LLP, in its capacity as special counsel to the Underwriters, dated the Closing
Date, with respect to the validity of the Notes and such other related matters
as you shall require, and the Depositor 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. Sidley Austin LLP, in
its capacity as special ERISA counsel to the Trust, shall have delivered an
opinion with respect to the characterization of the transfer of the
Receivables and to the effect that the statements in the Prospectus under the
headings "Summary - ERISA Considerations" and "ERISA Considerations", to the
extent that they constitute statements 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) You shall have received an opinion addressed to you and DCFS of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to you and your counsel,
to the effect that:
(i) Citibank, N.A. has been duly incorporated and is validly
existing as a national banking association in good standing under the
laws of the United States of America, and has the requisite entity power
and authority to execute and deliver each of the Indenture, the Sale and
Servicing Agreement and the Administration Agreement and to perform its
obligations thereunder.
(ii) With respect to Citibank, N.A., the performance of its
obligations under each of each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement and the consummation of the
transactions contemplated thereby do not require any consent, approval,
authorization or order of, filing with or notice to any United States
federal court, agency or other governmental body under any United States
federal statute or regulation that in our experience is normally
applicable to transactions of the type contemplated by each of the
Indenture, the Sale and Servicing Agreement and the Administration
Agreement, except such as may be required under the securities laws of
any State of the United States or such as have been obtained, effected
or given.
(iii) With respect to Citibank, N.A., the performance of its
obligations under each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement and the consummation of the
transactions contemplated thereby will not result in any breach or
violation of its articles of association or bylaws.
(iv) With respect to Citibank, N.A., the performance of its
obligations under each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement and the consummation of the
transactions contemplated thereby will not result in any breach or
violation of any United States federal statute or regulation that in the
experience of such counsel is normally applicable to transactions of the
type
18
contemplated by each of the Indenture, the Sale and Servicing Agreement
or the Administration Agreement.
(v) With respect to Citibank, N.A., to the knowledge of such
counsel, there is no legal action, suit, proceeding or investigation
before any court, agency or other governmental body pending or
threatened (by written communication to it of a present intention to
initiate such action, suit or proceeding) against it, which, either in
one instance or in the aggregate, draws into question the validity of,
seeks to prevent the consummation of any of the transactions
contemplated by or would impair materially its ability to perform its
obligations under any of the Indenture, the Sale and Servicing Agreement
or the Administration Agreement.
(vi) Each of the Indenture, the Sale and Servicing Agreement and
the Administration Agreement has been duly authorized, executed and
delivered by Citibank, N.A.
(vii) Each of the Indenture, the Sale and Servicing Agreement and
the Administration Agreement (to the extent that the laws of the State
of New York are designated therein as the governing law thereof),
assuming the necessary authorization, execution and delivery thereof by
the parties thereto (other than any party as to which we opine to that
effect herein) and the enforceability thereof against the other parties
thereto, is a valid and legally binding agreement under the laws of the
State of New York, enforceable thereunder in accordance with its terms
against Citibank, N.A.
(viii) The Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the Indenture.
(i) You shall have received an opinion addressed to you and DCFS of
Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Owner Trustee, dated the
Closing Date and satisfactory in form and substance to you and your counsel,
to the effect that:
(i) The Owner Trustee is duly incorporated and validly existing in
good standing as a national banking association under the laws of the
United States.
(ii) The Owner Trustee has the power and authority to execute,
deliver and perform its obligations under the Trust Agreement and to
consummate the transactions contemplated thereby.
(iii) The Owner Trustee has duly authorized, executed and
delivered the Trust Agreement, and the Trust Agreement constitutes a
legal, valid and binding obligation of the Owner Trustee, enforceable
against the Owner Trustee in accordance with its terms.
(iv) Neither the execution, delivery and performance by the Owner
Trustee of the Trust Agreement, nor the consummation of the transactions
contemplated thereby, is
19
in violation of the articles of association or bylaws of the Owner
Trustee or of any law, governmental rule or regulation of the State of
Delaware or of the federal laws of the United States of America
governing the trust powers of the Owner Trustee.
(v) Neither the execution, delivery and performance by the Owner
Trustee of the Trust Agreement, nor the consummation of the transactions
contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency under the
laws of the State of Delaware or the federal laws of the United States
of America governing the trust powers of the Owner Trustee.
(j) You shall have received a certificate dated the Closing Date of any
of the Chairman of the Board, the President, the Executive Vice President, any
Vice President, the Treasurer, any Assistant Treasurer, any Assistant
Controller, the principal financial officer or the principal accounting
officer of each of the Depositor and a member of the Company, in which such
officers shall state that, to the best of their knowledge after reasonable
investigation, (i) the representations and warranties of DCFS or the Company,
as the case may be, contained in the Trust Agreement, the Purchase Agreement
and the Sale and Servicing Agreement, as applicable, are true and correct in
all material respects; that DCFS or the Company, as the case may be, 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;
that no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission and (ii) since March 31, 2006, except as
may be disclosed in the Prospectus (and any supplement thereto), no material
adverse change or any development involving a prospective material adverse
change in or affecting particularly the business or properties of the Trust,
DCFS or the Company has occurred.
(k) You shall have received evidence satisfactory to you that, on or
before the Closing Date, UCC-1 financing statements have been or are being
filed in the office of the Secretary of State of the States of Michigan and
Delaware reflecting the transfer of the interest of the Depositor in the
Receivables and the proceeds thereof to the Trust and the grant of the
security interest by the Trust in the Receivables and the proceeds thereof to
the Indenture Trustee.
(l) The Offered Notes shall have been rated "Aaa" and "AAA" by each of
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), and Fitch, Inc. ("Fitch"),
respectively. The Class B Notes shall have been rated at least "A" or its
equivalent by each of Moody's and Fitch.
(m) The issuance of the Notes shall not have resulted in a reduction or
withdrawal by any Rating Agency of the current rating of any outstanding
securities issued or originated by the Depositor or any of its affiliates.
20
(n) On the Closing Date, the Certificates shall have been issued to the
Company.
(o) On the Closing Date, the Depositor shall have purchased and fully
paid for all of the Class A-1 Notes.
(p) The Indenture Trustee shall have delivered an officer's certificate
certifying that the information contained in the Statement of Eligibility and
Qualification (Form T-1) of the Indenture Trustee under the Trust Indenture
Act filed with the Registration Statement is true and correct.
The Depositor will provide or cause to be provided to you such conformed
copies of such opinions, certificates, letters and documents as you reasonably
request.
10. Indemnification and Contribution. (a) The Depositor will indemnify
and hold each Underwriter harmless against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or in the
Issuer Information or in any computer tape in respect of the Notes or the
related receivables furnished by the Depositor or arise out of or are based
upon the omission or alleged omission to state therein (in the case of the
Issuer Information, when read together with the Preliminary Prospectus) a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Depositor
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with the Underwriters'
Information.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Depositor against any losses, claims, damages or liabilities
to which the Depositor may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto or in any Derived Information, or arise
out of or are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission (A) in the Registration Statement, the Preliminary Prospectus
or the Prospectus or in any amendment or supplement thereto was made in
reliance upon and in conformity with the Underwriters'
21
Information or (B) in the Derived Information that does not arise out of or is
not based upon an error or material omission in the information contained in
the Preliminary Prospectus or in any computer tape in respect of the Notes or
the related receivables furnished by the Depositor to any Underwriter, and
will reimburse any legal or other expenses reasonably incurred by the
Depositor in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability that it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by the indemnified
party of the counsel appointed by the indemnifying party, the indemnifying
party will not be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Depositor on the one hand and the Underwriters on the other from the offering
of the Offered 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 Depositor on the 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 Depositor on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Depositor bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault 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 Depositor or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity
22
to correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim that
is the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter (except as may be provided in the agreement
among Underwriters relating to the offering of the Offered Notes) shall be
required to contribute any amount in excess of the underwriting discount or
commission applicable to the Offered Notes purchased by such Underwriter
hereunder. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Depositor under this Section shall be in
addition to any liability the Depositor may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
of the Underwriters within the meaning of the Securities Act; and the
obligations of the Underwriters under this Section shall be in addition to any
liability that the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Depositor,
to each officer of the Depositor who has signed the Registration Statement and
to each person, if any, who controls the Depositor within the meaning of the
Securities Act.
11. Defaults of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase the Offered Notes hereunder on the Closing
Date and arrangements satisfactory to each Representative and the Depositor
for the purchase of such Offered Notes by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on
the part of any nondefaulting Underwriter or the Depositor, except as provided
in Section 13. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
12. No Bankruptcy Petition. Each Underwriter covenants and agrees that,
prior to the date which is one year and one day after the payment in full of
all securities issued by the Depositor or by a trust for which the Depositor
was the depositor which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other Person in instituting against, the Depositor any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or state bankruptcy or similar law.
13. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Depositor or the Company or any of their officers, and each of the
Underwriters set forth in or made pursuant to this Agreement or contained in
certificates of officers of the Depositor submitted pursuant hereto shall
remain operative and in full force and effect, regardless of any investigation
or statement as
23
to the results thereof made by or on behalf of any Underwriter or the
Depositor or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the
Offered Notes. If for any reason the purchase of the Offered Notes by the
Underwriters is not consummated, the Depositor shall remain responsible for
the expenses to be paid or reimbursed by the Depositor pursuant to Section 8
and the respective obligations of the Depositor and the Underwriters pursuant
to Section 10 shall remain in effect. If for any reason the purchase of the
Offered Notes by the Underwriters is not consummated (other than because of a
failure to satisfy the conditions set forth in items (ii), (iv), (v) and (vi)
of Section 9(c)), the Depositor will reimburse any Underwriter, upon demand,
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by it in connection with the offering of the Offered
Notes. Nothing contained in this Section 13 shall limit the recourse of the
Depositor against the Underwriters.
14. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representative at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; if sent to the Depositor, will be mailed, delivered or telegraphed, and
confirmed to it at DaimlerChrysler Financial Services Americas LLC, ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 10 will be mailed, delivered or telegraphed and confirmed to such
Underwriter. Any such notice will take effect at the time of receipt.
15. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 10, and
no other person will have any right or obligations hereunder.
16. Representation of Underwriters. You will act for the several
Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by you will be binding
upon all the Underwriters.
17. Miscellaneous. Each Depositor acknowledges and agrees that the
Depositor and its Affiliates each have arm's-length business relationships
with the Underwriters and their respective Affiliates that create no fiduciary
duty on the part of any Underwriter or any of its Affiliates in connection
with all aspects of the transactions contemplated by this Agreement, and each
such party expressly disclaims any fiduciary duty.
Notwithstanding any other provision of this Agreement, immediately after
commencement of discussions with respect to the transactions contemplated
hereby, the Depositor (and each employee, representative or other agent of the
Depositor) may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of the transactions contemplated by
this Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to the Depositor relating to such tax treatment
and tax
24
structure. For purposes of the foregoing, the term "tax treatment" is the
purported or claimed federal income tax treatment of the transactions
contemplated hereby, and the term "tax structure" includes any fact that may
be relevant to understanding the purported or claimed federal income tax
treatment of the transactions contemplated hereby.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
19. Applicable Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York.
25
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 Depositor and the
several Underwriters in accordance with its terms.
Very truly yours,
DAIMLERCHRYSLER FINANCIAL SERVICES
AMERICAS LLC
By: /s/ ▇. ▇. ▇▇▇▇▇
--------------------------------
Name: ▇. ▇. ▇▇▇▇▇
Title: Assistant Controller
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
Citigroup Global Markets Inc.,
as Representative of the Several Underwriters
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Director
SCHEDULE I
Class A-2 Notes
Principal Amount of
the Class A-2 Notes
-------------------
Citigroup Global Markets Inc......................................$112,500,000
HSBC Securities (USA), Inc.........................................112,500,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated..................................112,500,000
ABN AMRO Incorporated...............................................22,500,000
Banc of America Securities LLC......................................22,500,000
Deutsche Bank Securities Inc........................................22,500,000
▇.▇. ▇▇▇▇▇▇ Securities Inc..........................................22,500,000
Greenwich Capital Markets, Inc......................................22,500,000
Total...............................$450,000,000
Class A-3 Notes
Principal Amount of
the Class A-3 Notes
-------------------
Citigroup Global Markets Inc......................................$142,500,000
HSBC Securities (USA), Inc.........................................142,500,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated..................................142,500,000
ABN AMRO Incorporated...............................................28,500,000
Banc of America Securities LLC......................................28,500,000
Deutsche Bank Securities Inc........................................28,500,000
▇.▇. ▇▇▇▇▇▇ Securities Inc..........................................28,500,000
Greenwich Capital Markets, Inc......................................28,500,000
Total...............................$570,000,000
I-1
Class A-4 Notes
Principal Amount of
the Class A-4 Notes
-------------------
Citigroup Global Markets Inc.......................................$33,675,000
HSBC Securities (USA), Inc..........................................33,675,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated...................................33,675,000
ABN AMRO Incorporated................................................6,735,000
Banc of America Securities LLC.......................................6,735,000
Deutsche Bank Securities Inc.........................................6,735,000
▇.▇. ▇▇▇▇▇▇ Securities Inc...........................................6,735,000
Greenwich Capital Markets, Inc.......................................6,735,000
Total...............................$134,700,000
Class B Notes
Principal Amount of
the Class B Notes
-----------------
Citigroup Global Markets Inc.......................................$45,300,000
HSBC Securities (USA), Inc...................................................0
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated............................................0
ABN AMRO Incorporated........................................................0
Banc of America Securities LLC...............................................0
Deutsche Bank Securities Inc.................................................0
▇.▇. ▇▇▇▇▇▇ Securities Inc...................................................0
Greenwich Capital Markets, Inc...............................................0
Total................................$45,300,000
I-2