Exhibit 1.1
EXECUTION COPY
DAIMLERCHRYSLER AUTO TRUST 2006-C
5.25% ASSET BACKED NOTES, CLASS A-2
5.02% ASSET BACKED NOTES, CLASS A-3
4.98% ASSET BACKED NOTES, CLASS A-4
5.11% ASSET BACKED NOTES, CLASS B
DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS LLC
UNDERWRITING AGREEMENT
----------------------
September 26, 2006
J.P. Morgan Securities Inc.
as Representative of the Several Underwriters
270 Park Avenue
New York, New York 10017
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-C (the "Trust") to issue and sell
$560,000,000 principal amount of its 5.25% Asset Backed Notes, Class A-2 (the
"Class A-2 Notes"), $503,000,000 principal amount of its 5.02% Asset Backed
Notes, Class A-3 (the "Class A-3 Notes"), $399,100,000 principal amount of its
4.98% 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 $60,800,000 principal amount of its 5.11% 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 $504,000,000 principal amount of its 5.33399% 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 October 1, 2006 (as amended and supplemented
from time to time, the "Indenture"), between the Trust and Deutsche Bank Trust
Company Americas, 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 October
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 October 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 2:39 p.m. on
September 26, 2006 (the "Time of Sale"), the Depositor had prepared the
following information (collectively, the "Time of Sale Information"): the
Preliminary Prospectus Supplement dated September 25, 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 September 26, 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
September 25, 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
99.83705% 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 99.80484% 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 99.72781% 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 99.63989% 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 J.P. Morgan Securities Inc. will
purchase Class
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B Notes). Delivery of and payment for the Offered Notes shall be made at the
office of Sidley Austin LLP, 787 Seventh Avenue, New York, New York 10019, on
October 2, 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 (as defined below) 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.
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(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 Securities Act, nor shall the Depositor or any
Underwriter disseminate any Underwriter Free Writing Prospectus "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 EDGAR on the SEC Web site at
www.sec.gov. 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 1-866-669-7629.
(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
(6) below), (2) information relating to the class, size, rating, price,
CUSIPS, coupon, yield, spread, benchmark, status, Bloomberg ticker and/or
legal maturity date of the Notes, the weighted average life, expected
final payment date, trade date, settlement date and
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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, (4) a column 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, (5) the minimum,
maximum and weighted average FICO scores of the receivables pool of the
Trust and (6) Derived Information prepared by or on behalf of an
Underwriter (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.
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(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.
(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
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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 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
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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 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
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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 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.
11
(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.
(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
12
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.
(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.
13
(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 (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.
14
(xix) The statements contained in the Prospectus and any supplement
thereto under the headings "Payments on the Notes", "Payments on the
Securities", "Form of 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
Seward & Kissel, 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) Deutsche Bank Trust Company Americas has been duly incorporated
and is validly existing as a NY banking corporation in good standing
under the laws of the State of New York, 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 Deutsche Bank Trust Company Americas, 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 Deutsche Bank Trust Company Americas, 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 Deutsche Bank Trust Company Americas, 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
18
federal statute or regulation that in the experience of such counsel is
normally applicable to transactions of the type contemplated by each of
the Indenture, the Sale and Servicing Agreement or the Administration
Agreement.
(v) With respect to Deutsche Bank Trust Company Americas, 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 Deutsche Bank Trust Company Americas.
(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
Deutsche Bank Trust Company Americas.
(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, Sherman & Flynn 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.
19
(iv) Neither the execution, delivery and performance by the Owner
Trustee of the Trust Agreement, nor the consummation of the transactions
contemplated thereby, is 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 June 30, 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
Moody's Investors Service, Inc. ("Moody's"), and Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. ("S&P"), respectively.
The Class B Notes shall have been rated at least "A" or its equivalent by each
of Moody's and S&P.
20
(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.
(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
(x) in the Registration Statement, the Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto or (y) in any Derived
Information prepared by or on behalf of such Underwriter, or arise out of or
are based upon the omission or the alleged omission to state
21
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' Information or (B) in
the Derived Information prepared by or on behalf of such Underwriter 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.
Notwithstanding anything to the contrary herein, no Underwriter shall be
obligated pursuant to this subsection (b) to indemnify and hold harmless the
Depositor with respect to any Derived Information prepared by or on behalf of
another Underwriter.
(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
22
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 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, and no Underwriter
shall be required to contribute any amount pursuant to this subsection (d)
with respect to any Derived Information prepared by or on behalf of another
Underwriter. 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
23
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 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 270 Park Avenue, New York, New York 10017; if sent to
the Depositor, will be mailed, delivered or telegraphed, and confirmed to it
at DaimlerChrysler Financial Services Americas LLC, 27777 Inkster Road,
Farmington Hills, Michigan 48334, 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
24
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 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/ M. L. Davis
------------------------------
Name: M. L. Davis
Title: Assistant Controller
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
J.P. Morgan Securities Inc.,
as Representative of the Several Underwriters
By: /s/ John Cho
--------------------------------
Name: John Cho
Title: Managing Director
SCHEDULE I
Class A-2 Notes
Principal Amount of
the Class A-2 Notes
-------------------
Banc of America Securities LLC....................................$140,000,000
Barclays Capital Inc...............................................140,000,000
J.P. Morgan Securities Inc.........................................140,000,000
ABN AMRO Incorporated...............................................35,000,000
Credit Suisse Securities (USA) LLC..................................35,000,000
The Royal Bank of Scotland plc......................................35,000,000
SG Americas Securities, LLC.........................................35,000,000
Total...............................$560,000,000
Class A-3 Notes
Principal Amount of
the Class A-3 Notes
-------------------
Banc of America Securities LLC....................................$125,752,000
Barclays Capital Inc...............................................125,752,000
J.P. Morgan Securities Inc.........................................125,752,000
ABN AMRO Incorporated...............................................31,436,000
Credit Suisse Securities (USA) LLC..................................31,436,000
The Royal Bank of Scotland plc......................................31,436,000
SG Americas Securities, LLC.........................................31,436,000
Total...............................$503,000,000
I-1
Class A-4 Notes
Principal Amount of
the Class A-4 Notes
-------------------
Banc of America Securities LLC.....................................$99,776,000
Barclays Capital Inc................................................99,776,000
J.P. Morgan Securities Inc..........................................99,776,000
ABN AMRO Incorporated...............................................24,943,000
Credit Suisse Securities (USA) LLC..................................24,943,000
The Royal Bank of Scotland plc......................................24,943,000
SG Americas Securities, LLC.........................................24,943,000
Total...............................$399,100,000
Class B Notes
Principal Amount of
the Class B Notes
-------------------
Banc of America Securities LLC..............................................$0
Barclays Capital Inc.........................................................0
J.P. Morgan Securities Inc..........................................60,800,000
ABN AMRO Incorporated........................................................0
Credit Suisse Securities (USA) LLC...........................................0
The Royal Bank of Scotland plc...............................................0
SG Americas Securities, LLC..................................................0
Total................................$60,800,000
I-2