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Exhibit 1.1
DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A
CLASS A-1 [ ]% ASSET BACKED NOTES
CLASS A-2 [ ]% ASSET BACKED NOTES
CLASS A-3 [ ]% ASSET BACKED NOTES
CLASS A-4 [ ]% ASSET BACKED NOTES
DAIMLER-BENZ VEHICLE RECEIVABLES CORPORATION
(Company)
MERCEDES-BENZ CREDIT CORPORATION
(Servicer)
December [ ], 1998
NOTE UNDERWRITING AGREEMENT
Chase Securities Inc., and
Salomon Smith Barney Inc.
as Representatives of the
Several Underwriters named
in Schedule I hereto (the "Representatives")
c/o Chase Securities Inc.
270 Park Avenue, 7th Floor
New York, New York 10017-2070
Ladies and Gentlemen:
Daimler-Benz Vehicle Receivables Corporation, a Delaware corporation
(the "Company"), proposes to sell to the several Underwriters named in Schedule
I hereto (the "Underwriters") $360,000,000 principal amount of Class A-1 [ ]%
Asset Backed Notes (the "Class A-1 Notes"), $508,000,000 principal amount of
Class A-2 [ ]% Asset Backed Notes (the "Class A-2 Notes"), $440,000,000
principal amount of Class A-3 [ ]% Asset Backed Notes (the "Class A-3 Notes")
and $241,800,000 principal amount of Class A-4 [ ]% Asset Backed Notes (the
"Class A-4 Notes" and, together with the Class A-1 Notes, the Class-2 Notes and
the Class A-3 Notes, the "Notes") to be issued by Daimler-Benz Vehicle Owner
Trust 1998-A (the "Trust"). Each Note will be secured by the Receivables (as
hereinafter defined) and certain other property of the Trust. The Notes will be
issued in an aggregate principal amount
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of $1,549,800,000, which is equal to approximately 95% of the aggregate
principal balance of the Receivables as of the Cutoff Date.
The Notes will be issued pursuant to the Indenture to be dated as of
November 1, 1998 (the "Indenture") by and between the Trust and Citibank, N.A.
(the "Indenture Trustee"). Simultaneously with the issuance and sale of the
Notes, the Trust will issue $81,654,551.40 principal balance of Class B [ ]%
Asset Backed Certificates (the "Certificates"), payments in respect of which
are, to the extent specified in the Indenture, the Sale and Servicing Agreement
to be dated as of November 1, 1998 (the "Sale and Servicing Agreement") among
the Trust, the Seller and the Servicer, and the Trust Agreement (as hereinafter
defined), subordinated to the rights of the holders of the Notes. The
Certificates will be issued pursuant to the Amended and Restated Trust Agreement
(the "Trust Agreement") to be dated as of November 1, 1998, by and between the
Seller, as depositor, and Chase Manhattan Bank Delaware (the "Owner Trustee").
The Certificates will evidence an undivided ownership interest of approximately
5% in the Trust, payments in respect of which are, to the extent specified in
the Sale and Servicing Agreement, subordinated to the rights of the holders of
the Notes.
The assets of the Trust include, among other things, a pool of
retail installment contracts for and retail loans evidenced by notes secured by
new and used automobiles and new and used medium- and heavy-duty trucks and
tractors (the "Receivables") and certain monies due thereunder on or after
November 1, 1998 (the "Cutoff Date"), such Receivables to be sold to the Trust
by the Company and to be serviced for the Trust by the Servicer.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations of
the Commission thereunder (the "Rules and Regulations"), a registration
statement, including a prospectus, relating to the Notes. Any preliminary
prospectus included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the Rules and Regulations is referred to in this
Agreement as the
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"Preliminary Prospectus." The registration statement as amended at the time when
it shall become effective, or, if a post-effective amendment is filed with
respect thereto, as amended by such post-effective amendment at the time of its
effectiveness, including in each case information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A
under the Act, is referred to in this Agreement as the "Registration Statement,"
and the prospectus in the form used to confirm sales of Notes is referred to in
this Agreement as the "Prospectus."
The terms which follow, when used in this Agreement, shall have the
meanings indicated. "Effective Date" shall mean each date that the Registration
Statement and any post-effective amendment or amendments thereto became or
become effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Rule 424" and "Rule
430A" refer to such rules under the Act. To the extent not defined herein,
capitalized terms used herein have the meanings assigned to such terms in the
Sale and Servicing Agreement.
The Company agrees with the Underwriters as follows:
1. The Company agrees to sell and deliver the Notes to the several
Underwriters as hereinafter provided, and each Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of Notes set forth opposite
such Underwriter's name in Schedule I hereto. The Class A-1 Notes are to be
purchased at the purchase price of [ ]% of the aggregate principal amount
thereof, the Class A-2 Notes are to be purchased at the purchase price of [ ]%
of the aggregate principal amount thereof, the Class A-3 Notes are to be
purchased at the purchase price of [ ]% of the aggregate principal amount
thereof and the Class A-4 Notes are to be purchased at the purchase price of [
]% of the aggregate principal amount thereof.
2. The Company understands that the Underwriters intend (i) to make
a public offering of their respective portions of the Notes as soon after the
Registration
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Statement and this Agreement have become effective as in the judgment of the
Representatives is advisable and (ii) initially to offer the Notes upon the
terms set forth in the Prospectus.
3. Payment for Notes shall be made to the Company or to its order by
wire transfer of same day funds at the office of Skadden, Arps, Slate, Meagher &
Flom LLP, 919 Third Avenue, New York, New York 10022 at 9:00 A.M., New York City
time, on [ ], 1998 (the "Closing Date"), or at such other time on the same or
such other date, not later than the fifth Business Day thereafter, as the
Representatives and the Company may agree upon in writing. As used herein, the
term "Business Day" means any day other than a day on which banks are permitted
or required to be closed in New York City.
Payment for the Notes shall be made against delivery to the
Representatives for the respective accounts of the several Underwriters of the
Notes registered in the name of Cede & Co. as nominee of The Depository Trust
Company and in such denominations, as permitted by the Sale and Servicing
Agreement, as the Representatives shall re quest in writing not later than two
full Business Days prior to the Closing Date, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Notes duly paid by the
Company. The certificates for the Notes will be made available for inspection
and packaging by the Representatives at the office of Skadden, Arps, Slate,
Meagher & Flom LLP, 919 Third Avenue, New York, New York 10022 not later than
1:00 P.M., New York City time, on the Business Day prior to the Closing Date.
4. The Company represents and warrants to and agrees with each
Underwriter that:
(a) The Registration Statement on Form S-1 (no. 333-64671),
including the Prospectus and such amendments thereto as may have been required
on or prior to the date hereof, relating to the Notes, has been filed with the
Commission and such Registration Statement as amended has become effective. With
respect to the Registration Statement, the conditions to the use of a
registration statement on Form S-1 under the Act, as set forth in the General
Instructions to Form S-1, have been satisfied by the Company;
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(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened by the
Commission, and on the Effective Date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all respects to the
requirements of the Act and the Rules and Regulations, and did not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and, on the Closing Date, the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents will include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished to
the Company in writing by any Underwriter through the Representatives expressly
for use therein;
(c) The computer tape with respect to the Receivables to be
sold to the Trust created as of the Cutoff Date (the "Computer Tape"), and made
available to the Representatives by the Company, was complete and accurate in
all material respects as of the date thereof;
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company;
(e) The Notes have been duly authorized, and, when issued and
delivered pursuant to the Indenture, duly authenticated by the Indenture Trustee
and paid for by the Underwriters in accordance with the terms of this
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Agreement, will be duly and validly issued, authenticated and delivered and
entitled to the benefits provided by the Indenture; each of the Sale and
Servicing Agreement, the Trust Agreement, the Purchase Agreement and this
Agreement have been duly authorized by the Company and, when executed and
delivered by the Company and the other parties thereto (in the case of the Sale
and Servicing Agreement, the Trust Agreement and the Purchase Agreement), each
of the Sale and Servicing Agreement, the Trust Agreement, the Purchase Agreement
and this Agreement will constitute a valid and binding agreement of the Company;
the Notes, the Indenture, the Sale and Servicing Agreement, the Trust Agreement
and the Purchase Agreement will conform to the descriptions thereof in the
Prospectus in all material respects;
(f) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required to be obtained or
made by the Company for the consummation of the transactions contemplated by
this Agreement or the Sale and Servicing Agreement or the Trust Agreement or the
Purchase Agreement except such as have been obtained and made under the Act,
such as may be required under state securities laws and the filing of any
financing statements required to perfect the Trust's interest in the
Receivables;
(g) The Company is not in violation of its Certificate of
Incorporation or By-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it or its proper ties is bound
which would have a material adverse effect on the transactions contemplated
herein or in the Sale and Servicing Agreement, the Trust Agreement and the
Purchase Agreement. The execution, delivery and performance of this Agreement,
the Sale and Servicing Agreement, the Trust Agreement and the Purchase Agreement
and the issuance and sale of the Notes and compliance with the terms and
provisions hereof and thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Company or any of its properties or any agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the properties of the Company
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is subject, or the Certificate of Incorporation or By-laws of the Company; and
the Company has full power and authority to authorize and sell, and establish,
the Trust that will issue the Notes as contemplated by this Agreement and to
enter into this Agreement, the Sale and Servicing Agreement, the Trust Agreement
and the Purchase Agreement and consummate the transactions contemplated hereby
and thereby;
(h) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the knowledge of
the Company, threatened to which the Company is or may be a party or to which
any property of the Company is or may be the subject that, if determined
adversely to the Company, could individually or in the aggregate reasonably be
expected to have a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or results of
operations of the Company or that would reasonably be expected to materially
adversely affect the interests of the holders of the Notes; and there are no
contracts or other documents of a character required to be filed as an exhibit
to the Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as required; and
(i) By assignment and delivery of each of the Receivables to
the Trust as of the Closing Date, the Company will transfer all of its right,
title and interest in, to and under the Receivables to the Trust, subject to no
prior lien, mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
5. The Company covenants and agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file or cause to be filed any amendment of the Registration
Statement or supplement to the Prospectus which shall be reasonably disapproved
of promptly by the Representatives after reasonable notice thereof. Subject to
the foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Company will cause the Prospectus, properly
completed,
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and any supplement thereto, to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Underwriters of such timely filing. The
Company will promptly advise the Underwriters (i) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the
Notes, any amendment to the Registration Statement shall have become effective,
(iii) of any request by the Commission for any amendment of the Registration
Statement or supplement to the Prospectus or for any additional information,
(iv) of the receipt by the Company of notification with respect to the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of notification with respect
to the suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The Company
will use its reasonable best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof;
(b) The Company will deliver, at its expense, to the
Representatives, two signed copies of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits, and to each
other Underwriter a conformed copy of the Registration Statement and each
amendment thereto, in each case without exhibits, and, during the period
mentioned in paragraph (e) below, to each of the Underwriters as many copies of
the Prospectus (including all amendments and supplements there to) as the
Representatives may reasonably request. The Company will furnish or cause to be
furnished to the Representatives copies of all reports on Form SR required by
Rule 463 under the Act;
(c) If (i) during such period of time after the first date of
the public offering of the Notes as in the opinion of counsel for the
Underwriters a Prospectus relating to the Notes is required by law to be
delivered in connection with sales by an Underwriter or dealer, any event shall
occur as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
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circumstances under which they were made, not misleading, or (ii) it is
necessary to amend or supplement the Prospectus to comply with the applicable
law, then the Company will forthwith prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Notes may have been sold
by the Representatives on behalf of the Underwriters and upon request by the
Representatives to any other dealers identified by the Representatives, such
amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances under which they were made, be misleading or so that
the Prospectus will comply with the law;
(d) The Company will endeavor to qualify the Notes for offer
and sale under the securities or "Blue Sky" laws of such jurisdictions as the
Representatives shall reasonably request and will continue such qualification
in effect so long as reasonably required for distribution of the Notes and will
pay all fees and expenses (including fees and disbursements of counsel to the
Underwriters) reasonably incurred in connection with such qualification and in
connection with the determination of the eligibility of the Notes for investment
under the laws of such jurisdictions as the Representatives may designate;
provided, however, that the Company shall not be obligated to qualify to do
business in any jurisdiction in which it is not currently so qualified; and
provided further that the Company shall not be required to file a general
consent to service of process in any jurisdiction;
(e) On or before March 31, 2000, the Company will cause the
Trust to make generally available to Noteholders and to the Representatives as
soon as practicable an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the Trust occurring after the
Effective Date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Act and Rule 158 of the Commission promulgated
thereunder;
(f) For the period from the date of this Agreement until the
retirement of the Notes the Servicer will furnish to the Representatives (x)
copies of each
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certificate and the annual statements of compliance delivered to the Trustee
pursuant to Article III of the Sale and Servicing Agreement and the annual
independent certified public accountant's servicing reports furnished to the
Trustee pursuant to Article III of the Sale and Servicing Agreement, by
first-class mail as soon as practicable after such statements and reports are
furnished to the Trustee and (y) copies of each amendment to the Sale and
Servicing Agreement, and on each Determination Date or as soon thereafter as
practicable, the Servicer shall give notice substantially in the form of
Schedule II hereto by telex or telecopy to the Representatives of the Pool
Factor as of the related Record Date;
(g) During the period beginning on the date hereof and
continuing to and including the Business Day following the Closing Date, the
Company will not offer, sell, contract to sell or otherwise dispose of any
securities of or guaranteed by the Company which are substantially similar to
the Notes without the prior written consent of the Representatives;
(h) The Company will register the Notes pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") prior to [ ],
199_;
(i) To the extent, if any, that the rating provided with
respect to the Notes by the rating agency or rating agencies rating the Notes
(the "Rating Agency") is conditional upon the furnishing of documents or the
taking of any other action by the Company agreed upon on or prior to the Closing
Date, the Company shall use its reasonable best efforts to furnish such
documents and take any such other action; and
(j) So long as any of the Notes are outstanding, the Company
will furnish to the Representatives by first class mail (i) as soon as practical
after the end of the Company's fiscal year, copies of all documents, records and
financial statements required to be distributed to Certificateholders (including
Certificate Owners) or filed with the Commission pursuant to the Exchange Act,
or any order of the Commission thereunder and (ii) from time to time, any other
information concerning the Company filed with any government or regulatory
authority or national securities exchange which is
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otherwise publicly available, as the Representatives may reason ably request.
6. The Company will pay all costs and expenses incident to the
performance of its obligations under this Agreement, including, without limiting
the generality of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the Notes, (ii)
incident to the preparation, printing and filing under the Act of the
Registration Statement, the Prospectus and any preliminary prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification and determination of
eligibility for investment of the Notes under the laws of such jurisdictions as
the Underwriters may designate (including fees and disbursements of counsel for
the Under writers with respect thereto), (iv) related to any filing with the
National Association of Securities Dealers, Inc., (v) in connection with the
printing (including word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Sale and Servicing Agreement and any Blue Sky
Memorandum and the furnishing to Under writers and dealers of copies of the
Registration Statement and the Prospectus as herein provided, (vi) the fees and
disbursements of the Company's counsel and accountants and the Underwriters'
counsel fees and disbursements, and (vii) any fees and expenses payable to the
Rating Agencies in connection with the rating of the Notes. Notwithstanding the
foregoing, the Underwriters have agreed to reimburse the Company for expenses,
not to exceed $[ ], incurred by the Company in connection with the issuance and
distribution of the Notes.
7. The obligations of the several Underwriters to purchase and pay
for the Notes will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of officers of the Company made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) At the time this Agreement is executed and delivered by
the Company and at the Closing Date, [KPMG Peat Marwick] shall have furnished to
the Representatives letters dated, respectively, as of the date of
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this Agreement and as of the Closing Date substantially in the forms of the
drafts to which the Representatives previously agreed.
(b) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the Rules and Regulations and in accordance with Section 5(a) of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or, to the knowledge of the Company, threatened by the
Commission; and all requests for additional information from the Commission with
respect to the Registration Statement shall have been complied with to the
satisfaction of the Representatives.
(c) The Representatives shall have received an officer's
certificate, dated the Closing Date, signed by the Chairman of the Board, the
President, or any Vice President and by a principal financial or accounting
officer of the Company representing and warranting that, as of the Closing Date,
except to the extent that they relate expressly to another date in which case
they will be true and correct as of such date on the Closing Date, the
representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the best of their knowledge, are contemplated by the
Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Trust, the Company, Daimler-Benz North America Corporation
("DBNA"), Freightliner Corporation and its subsidiaries ("Freightliner") or the
Servicer which, in the judgment of the Representatives, materially impairs the
investment quality of the Notes or makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Notes or (ii) any
downgrading in the rating of any debt securities of DBNA
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or any of its direct or indirect subsidiaries by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any such debt securities (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating).
(e) Morgan, Lewis & Bockius LLP, special counsel to the
Company, MBCC, the Servicer and DBNA, shall have furnished to the
Representatives their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with full corporate power and authority to own its properties
and conduct its business as described in the Prospectus.
(ii) MBCC has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with full corporate power and authority to own its properties and conduct
its business as described in the Prospectus.
(iii) DBNA has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with full corporate power and authority to own its properties and conduct
its business as described in the Prospectus, and is duly qualified to
transact business and is in good standing in the State of New York.
(iv) The Sale and Servicing Agreement, the Administration
Agreement and the Purchase Agreement have been duly authorized, executed
and delivered by, and each constitutes a valid and binding obligation of
each of the Company, MBCC and the Servicer, as applicable, enforceable
against each of the Company, MBCC and the Servicer, as applicable, in
accordance with its terms.
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(v) The Servicing Guaranty Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding obligation
of, DBNA, enforceable against DBNA in accordance with its terms.
(vi) This Agreement has been duly authorized, executed and
delivered by each of the Company and DBNA.
(vii) Neither the execution, delivery and performance of this
Agreement, the Sale and Servicing Agreement, the Trust Agreement, the
Administration Agreement and the Purchase Agreement by the Company, MBCC
or DBNA, as applicable, nor the execution, delivery and performance of the
Servicing Guaranty Agreement by DBNA, nor the execution and delivery of
the Indenture by the parties thereto will conflict with or result in a
breach of any of the terms or pro visions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the properties or assets of the Company, MBCC or
DBNA pursuant to the terms of the Certificate of Incorporation or the
By-Laws of the Company, MBCC or DBNA, any statute, rule or regulation or,
to the best of such counsel's knowledge, any order of any governmental
agency or body or any court having jurisdiction over the Company, MBCC or
DBNA, or any of their respective properties or any agreement or instrument
known to such counsel to which the Company, MBCC or DBNA, is a party or by
which any of them may be bound or to which any of their properties may be
subject.
(viii) To the best of such counsel's knowledge, no
authorization, approval or consent of any court or governmental agency or
authority is required by law in connection with the execution, delivery
and performance by the Company, MBCC, DBNA or the Servicer, as applicable,
of this Agreement, the Sale and Servicing Agreement, the Trust Agreement,
the Administration Agreement or the Purchase Agreement, or the execution,
delivery or performance by DBNA of the Servicing Guaranty Agreement, and
the execution and delivery by the parties thereto of the Indenture, except
such as may be required under the
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Act or the Rules and Regulations and state securities laws, and except for
such authorizations, approvals or consents (specified in such opinion) as
are in full force and effect as of the Closing Date.
(ix) The Notes have been duly authorized and, when executed
and authenticated by the Trustee in accordance with the Indenture and
delivered and paid for pursuant to this Agreement, will be validly issued
and outstanding and entitled to the benefits provided by the Indenture.
(x) Although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to in
the opinion in subsection (xviii) of this Section 7(e), they have no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to
the Closing Date (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the Prospectus
or any further amendment or supplement thereto made by the Company or DBNA
prior to the Closing Date (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading or that, as
of the Closing Date, either the Registration Statement or the Prospectus
or any further amendment or supplement thereto made by the Company or DBNA
prior to the Closing Date (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and they do
not know of any amendment to the Registration
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Statement required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement
or required to be described in the Registration Statement or the
Prospectus which are not filed or described as required.
(xi) Such counsel does not know of any contract or other
document of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which is not filed or described as required.
(xii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened to which DBNA is a
party or of which any property of DBNA is subject, (A) that are required
to be disclosed in the Registration Statement or (B)(1) that assert the
invalidity of all or part of this Agreement, the Sale and Servicing
Agreement, the Servicing Guaranty Agreement or the Purchase Agreement,
(2) that seek to prevent the issuance of the Notes, (3) that could
materially and adversely affect DBNA's obligations under this Agreement or
the Servicing Guaranty Agreement or (4) that seek to affect adversely
the federal or state income tax attributes of the Notes.
(xiii) MBCC has full power and authority to sell and assign
the property to be sold and assigned to the Company pursuant to the
Purchase Agreement and has duly authorized such sale and assignment to the
Company by all necessary corporate action.
(xiv) The Company has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the
Trustee as part of the Trust pursuant to the Sale and Servicing Agreement
and has duly authorized such sale and assignment to the Trustee by all
necessary corporate action.
(xv) Such counsel knows of no claim by or on behalf of any
third party to the effect that, immediately prior to the transfer of
Receivables by
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MBCC pursuant to the Purchase Agreement, any person other than MBCC was
the sole owner of any right, title or interest in the Receivables and the
other property to be transferred by it to the Company.
(xvi) To the best of such counsel's knowledge, the
Receivables are "chattel paper" as defined in the UCC.
(xvii) All filings necessary under the Uniform Commercial Code
as in effect in the State of New York (the "UCC") or the State of Delaware
(the "DE-UCC") or the State of Connecticut (the "CT-UCC") to perfect both
the transfer of the Receivables and the proceeds thereof (within the
meaning of Section 9- 306 of the UCC or the DE-UCC or the CT-UCC,
whichever may be applicable (the "Applicable UCC")) by MBCC to the Company
pursuant to the Purchase Agreement and the transfer of the Receivables and
the proceeds thereof (within the meaning of Section 9-306 of the
Applicable UCC) by the Company to the Trustee pursuant to the Sale and
Servicing Agreement have been made and, provided that neither MBCC nor the
Company relocates its chief executive office in a state other than
Connecticut or Delaware, respectively, the Trustee maintains the list of
Receivables for inspection by interested parties, and no administrative
errors are made by state or local agencies affecting perfection, no other
filings (other than the filing of continuation statements) need be made
to maintain the perfection of the transfer of the Receivables and the
proceeds thereof (within the meaning of Section 9-306 of the Applicable
UCC) either to the Company pursuant to the Purchase Agreement or to the
Trustee pursuant to the Sale and Servicing Agreement.
(xviii) The statements in the Registration Statement and the
Prospectus under the headings "ERISA Considerations" and "Certain Legal
Aspects of the Receivables," to the extent they constitute descriptions
of matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are correct in all material
respects.
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(xix) The Trust Agreement is not required to be qualified
under the Trust Indenture Act, the Indenture has been duly qualified under
the Trust Indenture Act of 1939, and the Trust is not required to be
registered as an "investment company" under the Investment Company Act of
1940, as amended.
(xx) The Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that
purpose has been instituted or, to the best of such counsel's knowledge,
threatened by the Commission; the Registration Statement and the
Prospectus and any further amendments and supplements thereto made by the
Company prior to the Closing Date (other than the financial statements and
related schedules therein or omitted therefrom, as to which such counsel
need express no opinion) comply as to form in all material respects with
the requirements of the Act and the Rules and Regulations.
(xxi) The Notes, this Agreement, the Indenture, the Sale and
Servicing Agreement, the Trust Agreement, the Servicing Guaranty
Agreement, the Administration Agreement and the Purchase Agreement each
conform in all material respects with the descriptions thereof contained
in the Registration Statement and the Prospectus.
Such opinion may be made subject to the qualifications that
the enforceability of the terms of the Indenture, the Sale and Servicing
Agreement, the Trust Agreement, the Purchase Agreement, the Administration
Agreement and the Servicing Guaranty Agreement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights, and the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(f) Morgan, Lewis & Bockius LLP shall have furnished their
written opinion, dated the Closing Date, with respect to the characterization of
the transfer of the Receivables by the Servicer to the Company and
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from the Company to the Trust and such opinion shall be in substantially the
form previously discussed with the Representatives and their counsel and in any
event satisfactory in form and in substance to the Representatives and their
counsel.
(g) Morgan, Lewis & Bockius LLP, special tax counsel to the
Company, shall have furnished to the Representatives their written opinion,
dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Trust will not be classified as an association or
publicly traded partnership taxable as a corporation for federal income
tax purposes and the Notes will be characterized as debt for federal
income tax purposes.
(ii) The Trust will not be subject to New York State income,
franchise or other taxes measured by income, profits, capital, or receipts
(other than sales, excise, or ad valorem taxes that might be imposed upon
the sale of a Financed Vehicle acquired upon default of a Receivable).
(iii) Note Owners who would not otherwise be subject to tax
imposed by the State of New York will not be subject to New York State
income or franchise taxes with respect to interest or other amounts which
are allocable to such Note Owners solely as a result of such Note Owners'
beneficial ownership of a Note (other than a Note Owner's allocable share
of any sales, excise, or ad valorem taxes that might be imposed upon the
sale of a Financed Vehicle acquired upon default of a Receivable).
(iv) The statements in the Registration Statement and
Prospectus under the headings "Certain Federal Income Tax Consequences,"
to the extent that they constitute descriptions of matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects.
(h) [Mayer, Brown & Platt,] special Illinois tax counsel to
the Company shall have furnished to
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the Representatives their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Trust will not be subject to tax under the Illinois
Income Tax Act (the "IITA"), the Illinois Franchise Tax or the personal
property replacement tax and the Trust will not be subject to other
Illinois taxes measured by income, capital, profits or receipts (other
than sales, excise, or ad valorem taxes that might be imposed upon the
sale of a vehicle acquired upon default of a Receivable) and the Notes
will be characterized as debt for Illinois income tax purposes.
(ii) Note Owners who would not otherwise be subject to tax
under the IITA or the Illinois Franchise Tax will not be subject to
Illinois income or franchise taxes with respect to interest or other
amounts attributable solely to the beneficial owner ship of a Notes (other
than such Note Owner's share of sales, excise, or ad valorem taxes that
might be imposed upon the sale of a vehicle acquired upon default of a
Receivable).
(i) [Fulbright & Jaworski, L.L.P.], special Texas tax counsel
to the Company shall have furnished to the Representatives their written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Trust will not be subject to Texas franchise tax or other
Texas taxes measured by income, capital, profits or receipts (other than sales,
excise, or ad valorem taxes that might be imposed upon the sale of a vehicle
acquired upon default of a Receivable) and the Notes will be characterized as
debt for Texas income tax purposes.
(ii) Note Owners who would not otherwise be subject to tax in
Texas will not be subject to Texas income or franchise taxes with respect
to interest or other amounts attributable solely to the beneficial
ownership of a Note (other than such Note Owner's share of sales, excise,
or ad valorem taxes that might be imposed upon the sale of a vehicle
acquired upon default of a Receivable).
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(i) [Day, Berry & Howard], special Connecticut tax counsel to
the Company, shall have furnished to the Representatives their written opinion,
dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Trust will not be subject to Connecticut income,
franchise or other taxes measured by income, profits, capital, or receipts
(other than sales, excise, or ad valorem taxes that might be imposed upon
the sale of a vehicle acquired upon default of a Receivable) and the Notes
will be characterized as debt for Connecticut income tax purposes.
(ii) Note Owners who would not otherwise be subject to tax in
Connecticut will not be subject to Connecticut income or franchise taxes
with respect to interest or other amounts (including payments under the
Shortfall Amount Agreement) attributable solely to the beneficial
ownership of a Note (other than such Note Owner's share of sales, excise,
or ad valorem taxes that might be imposed upon the sale of a vehicle
acquired upon default of a Receivable).
(j) [Troutman Sanders], special Georgia tax counsel to the
Company, shall have furnished to the Representatives their written opinion,
dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Trust will not be subject to Georgia income, franchise
or other taxes measured by income, profits, capital, or receipts (other
than sales, excise, or ad valorem taxes that might be imposed upon the
sale of a vehicle acquired upon default of a Receivable) and the Notes
will be characterized as debt for Georgia income tax purposes.
(ii) Note Owners who would not otherwise be subject to tax in
Georgia will not be subject to Georgia income or franchise taxes with
respect to interest or other amounts attributable solely to the
beneficial ownership of a Note (other than such Note
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Owner's share of sales, excise, or ad valorem taxes that might be imposed
upon the sale of a vehicle acquired upon default of a Receivable).
(k) [Robert Merck, Esq.], General Counsel of MBCC, shall have
furnished to the Representatives his written opinion, dated the Closing Date, in
form and substance satisfactory to the Representatives, to the effect that:
(i) MBCC has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware
with full corporate power and authority to own its properties and conduct
its business as described in the Prospectus, and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or the ownership of its property requires such
qualification except where the failure to be so qualified or in good
standing would not have a material adverse effect on MBCC.
(ii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with full corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of its
property requires such qualification except where the failure to be so
qualified or in good standing would not have a material adverse effect on
the Company.
(iii) The execution, delivery and performance of the Sale and
Servicing Agreement, the Administration Agreement and the Purchase
Agreement by MBCC or the Trust Agreement and the Indenture by the parties
thereto will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the
properties or assets of MBCC pursuant to the terms of the Certificate of
Incorporation or the By-Laws of MBCC, any statute, rule,
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regulation or order of any governmental agency or body or any court having
jurisdiction over MBCC or any of its properties or any agreement or
instrument to which MBCC is a party or by which MBCC or any of its
properties is bound.
(iv) No authorization, approval or consent of any court or
governmental agency or authority is necessary in connection with the
execution, delivery and performance by MBCC of the Sale and Servicing
Agreement, the Administration Agreement or the Purchase Agreement, or by
the parties thereto of the Trust Agreement and the Indenture, except such
as may be required under the Act or the Rules and Regulations and state
securities laws, and except for such authorizations, approvals or
consents (specified in such opinion) as are in full force and effect as of
the latest Effective Date and the Closing Date.
(v) There are no legal or governmental proceedings pending to
which MBCC is a party or of which any property of MBCC is the subject, and
no such proceedings are known by such counsel to be threatened or
contemplated by governmental authorities or threatened by others, (A) that
are required to be disclosed in the Registration Statement or (B)(1)
asserting the invalidity of all or part of the Sale and Servicing
Agreement, the Administration Agreement, the Trust Agreement, the
Indenture or the Purchase Agreement, (2) seeking to prevent the issuance
of the Notes, (3) that could materially and adversely affect MBCC's
obligations under the Purchase Agreement, the Administration Agreement or
the Sale and Servicing Agreement, or (4) seeking to affect adversely the
federal or state income tax attributes of the Notes.
(vi) There are no legal or governmental proceedings pending
to which the Company is a party or of which any property of the Company is
the subject, and no such proceedings are known by such counsel to be
threatened or contemplated by governmental authorities or threatened by
others, (A) that are required to be disclosed in the Registration
Statement or (B)(1) asserting the invalidity of all or part of the Sale
and Servicing Agreement, the
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Administration Agreement, the Trust Agreement, the Indenture or the
Purchase Agreement, (2) seeking to prevent the issuance of the Notes, (3)
that could materially and adversely affect the Company's obligations under
the Purchase Agreement, the Administration Agreement, the Trust Agreement,
the Indenture or the Sale and Servicing Agreement, or (4) seeking to
affect adversely the federal or state income tax attributes of the Notes.
(vii) Such counsel is familiar with MBCC's standard operating
procedures relating to MBCC's acquisition of a perfected first priority
security interest in the vehicles financed by MBCC pursuant to retail
installment sale contracts in the ordinary course of MBCC's business.
Assuming that MBCC's standard procedures have been followed with respect
to the perfection of security interests in the Financed Vehicles (and such
counsel has no reason to believe that MBCC has not followed its standard
procedures in connection with the perfection of security interest in the
Financed Vehicles), MBCC has acquired or will acquire a perfected first
priority security interest in each of the Financed Vehicles.
(viii) Immediately prior to the transfer of Receivables by
MBCC pursuant to the Purchase Agreement, MBCC was the sole owner of all
right, title and interest in the Receivables and the other property to be
transferred by it to the Company.
(ix) The Receivables are "chattel paper" as defined in the
UCC.
(l) The Representatives shall have received an opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, dated the Closing Date, with respect
to the validity of the Notes and such other related matters as the
Representatives shall require and the Company shall have furnished or caused to
be furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(m) The Representatives shall have received an opinion
addressed to the Underwriters, the Company and the Servicer of Seward & Kissel,
counsel to
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the Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to the Representatives and its counsel, to the effect that:
(i) The Indenture Trustee is a national banking association
duly organized and validly existing under the laws of the United States.
(ii) The Indenture Trustee has the power and authority to
enter into and perform the Indenture. The execution, delivery and
performance of the Indenture has been duly authorized by all requisite
action, and the Indenture has been duly executed and delivered by the
Indenture Trustee.
(iii) No consent, approval, authorization, order of or filing
with any court, governmental agency or body (including without limitation,
any banking regulatory agency or body or arbitrator having jurisdiction
over the Indenture Trustee) is required in connection with the execution
and delivery by the Indenture Trustee of the Indenture or the Sale and
Servicing Agreement and the performance by the Indenture Trustee of the
transactions thereunder.
(iv) The Indenture, assuming due authorization, execution and
delivery thereof by the Trust, constitutes a valid and legally binding
agreement of the Indenture Trustee and is enforceable against the
Indenture Trustee in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights generally
and the rights of creditors of banks in particular and by general
principles of equity.
(v) The Notes have been duly executed, authenticated and
delivered by the Indenture Trustee.
(vi) If the Indenture Trustee were acting as Servicer under
the Sale and Servicing Agreement as of the date of this Agreement, the
Indenture Trustee would have the corporate power and authority
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to perform the obligations of the Servicer as provided in the Sale and
Servicing Agreement.
(n) The Representatives shall have received an opinion
addressed to the Representatives, the Seller and MBCC of Pryor, Cashman, Sherman
& Flynn, counsel to the Owner Trustee, dated the Closing Date and satisfactory
in form and substance to the Representatives and counsel to the Representatives,
to the effect that:
(i) The Owner Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing under the laws
of the State of Delaware with full corporate trust power and authority to
enter into and perform its obligations under the Trust Agreement, and, on
behalf of the Trust, under the Indenture, the Sale and Servicing Agreement
and the Administration Agreement.
(ii) The Trust Agreement duly creates for the benefit of the
Seller and the Certificateholders the interests in the Owner Trust Estate
which the Trust Agreement purports to create, and the trust purported to
be created by the Trust Agreement is validly formed and is validly
existing as a business trust in good standing under the laws of the State
of Delaware.
(iii) The Trust Agreement authorizes the Trust to execute and
deliver the Indenture, the Sale and Servicing Agreement and the
Administration Agreement, to issue the Notes and to grant the Indenture
Trust Estate to the Indenture Trustee as security for the Notes.
(iv) The execution and delivery of the Trust Agreement and, on
behalf of the Trust, the Indenture, the Sale and Servicing Agreement and
the Administration Agreement and the performance by the Owner Trustee of
its obligations under the Trust Agreement, the Indenture, the Sale and
Servicing Agreement and the Administration Agreement have been duly
authorized by all necessary corporate action of
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the Owner Trustee and each has been duly executed and delivered by the
Owner Trustee.
(v) Assuming due authorization, execution and delivery thereof
by the parties thereto, the Trust Agreement, the Indenture, the Sale and
Servicing Agreement and the Administration Agreement each constitutes a
legal, valid and binding obligation of the Owner Trustee, enforceable
against the Owner Trustee in accordance with its terms, except (1) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights, and (2) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(vi) Neither the execution nor delivery by the Owner Trustee
of the Trust Agreement and, on behalf of the Trust, the Indenture, the
Sale and Servicing Agreement and the Administration Agreement, nor the
consummation of any of the transactions by the Owner Trustee contemplated
thereby required the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect to, any
governmental authority or agency under any existing federal or Delaware
State law governing the trust powers of the Owner Trustee, except such as
have been obtained, made or taken.
(vii) The Owner Trustee has duly authorized, issued, executed
and delivered each of the Notes pursuant to the terms and provisions of
the Indenture; each of such Notes is a legal, valid and binding obligation
of the Trust, enforceable against the Trust in accordance with its terms
and the terms of the Indenture; and each of such Notes is entitled to the
benefits and security afforded by the Indenture in accordance with the
terms of the Indenture.
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(viii) The execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Trust, the Indenture, the Sale and
Servicing Agreement and the Administration Agreement, and the performance
by the Owner Trustee of its obligations thereunder do not conflict with or
result in a breach or violation of any of the terms, conditions or
provisions of any law, governmental rule or regulation of the United
States or the State of Delaware governing the banking or trust powers of
the Owner Trustee or the Certificate of Incorporation or By-Laws of the
Owner Trustee or, to such counsel's knowledge, any order writ, injunction
or decree of any court or governmental authority against the Owner Trustee
or by which it or any of its properties is bound or, to such counsel's
knowledge, any indenture, mortgage or contract or other agreement or
instrument to which the Owner Trustee is a party or by which it or any of
its properties is bound, or constitute a default thereunder.
(ix) The Owner Trustee has acquired such title to the
Receivables as has been conveyed to the Owner Trustee on the date hereof,
subject to the security interest created pursuant to the Indenture; and,
to such counsel's knowledge, there exist no liens, security interests or
charges affecting the title of the Owner Trustee to the Receivables
resulting from acts of or claims against the Owner Trustee except liens,
security interests or charges contemplated by the Basic Documents.
(o) The Representatives shall have received a letter or
letters from each counsel delivering any writ ten opinion to any Rating Agency
in connection with the transaction described herein which is not otherwise
described in this Agreement allowing the Underwriters to rely on such opinion as
if it were addressed to the Underwriters.
(p) The Representatives shall have received an officer's
certificate, dated the Closing Date, of the Chairman of the Board, the President
or any Vice President and by a principal financial or accounting
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officer of each of the Company and the Servicer in which each such officer shall
state that, the representations and warranties of the Company or the Servicer,
as applicable, contained in the Sale and Servicing Agreement and the
representations and warranties of MBCC or the Company, as applicable, contained
in the Purchase Agreement are true and correct in all material respects and that
the Company or the Servicer, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date in all material respects.
(q) The Notes shall have been rated "Aaa" by Moody's Investors
Service, Inc. and "AAA" by Standard & Poor's Ratings Services, a Division of The
McGraw-Hill Companies, Inc.
(r) On the Closing Date, the representations and warranties
of the Company in the Sale and Servicing Agreement will be true and correct.
(s) Any taxes, fees and other governmental charges which are
due and payable in connection with the execution, delivery and performance of
this Agreement, the Indenture, the Sale and Servicing Agreement and the Notes
shall have been paid by the Company at or prior to the Closing Date.
8. The Company and DBNA agree to jointly and severally indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, the legal fees and other expenses
reasonably incurred in connection with investigating, preparing or defending any
suit, action or proceeding or any claim asserted, except as otherwise provided
below regarding the limitation on use of counsel) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have fur nished such amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as
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such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information furnished to the Company or DBNA in writing by any
Underwriter through the Representatives expressly for use therein; provided that
the foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any losses, claims
or damages purchased Notes if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary prospectus is eliminated
or remedied in the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) and, if the furnishing of
a copy of the Prospectus (as so amended or supplemented) to such person was
required by law or was requested in writing by the Company, a copy of the
Prospectus (as so amended or supplemented) shall not have been furnished to such
person at or prior to the written confirmation of the sale of such Notes to such
person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each director and officer of the Company who signed
the Registration Statement, and DBNA and each person who controls the Company
or DBNA within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company and
DBNA to each Underwriter, but only with reference to information furnished to
the Company or DBNA in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement, the Prospectus, any amendment
or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person
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to represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, in which case such counsel for the
Indemnified Person shall be reasonably satisfactory to the Indemnifying Person.
It is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to one local
counsel in each applicable jurisdiction) for all Indemnified Persons, and that
all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of Underwriters
shall be designated in writing by the Representatives and any such separate firm
for the Company or DBNA or either of their directors, officers who sign the
Registration Statement or control persons shall be designated in writing by
DBNA. The Indemnifying Person shall not be liable for any settlement of any
claim or proceeding effected without its written consent. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person,
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effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 8 is unavailable other than in accordance with its
terms to an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and DBNA on
the one hand and the Underwriters on the other hand from the offering of the
Notes or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and DBNA on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and DBNA on the
one hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by the Company and DBNA and the total underwriting discounts
and the commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate public offering
price of the Notes. The relative fault of the Company and DBNA on the one hand
and the Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or DBNA or by any of the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
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The Company and DBNA and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, in no event shall an Under
writer be required to contribute any amount in excess of the amount by which the
total price at which the Notes underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to the respective principal
amount of Notes set forth opposite their names in Schedule I hereto, and not
joint.
The indemnity and contribution agreements contained in this Section
8 are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section
8 and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company or DBNA, or any of their officers or directors or any other
person controlling the Company or DBNA and (iii) acceptance of and payment for
any of the Notes.
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9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, the New York Stock Exchange or the
American Stock Exchange; (ii) trading of any securities of or guaranteed by DBNA
or DaimlerChrysler AG shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives is material and adverse and which,
in the judgment of the Representatives, makes it impracticable to market any
subclass of the Notes on the terms and in the manner contemplated in the
Prospectus.
10. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date any one or more of the Underwriters shall
fail or refuse to purchase Notes of any subclass which it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of Notes of
such subclass which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of the Notes of such subclass to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
principal amount of Notes of such subclass set forth opposite their respective
names in Schedule I bears to the aggregate principal amount of Notes of such
subclass set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Notes of such subclass which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the principal amount of Notes of any
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subclass that any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of Notes of such subclass without the written consent of
such Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Notes of any subclass which it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of Notes of
such subclass with respect to which such default occurs is more than one-tenth
of the aggregate principal amount of the Notes of such subclass to be purchased
on such date, and arrangements satisfactory to the Representatives and the
Company for the purchase of such Notes are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Under writer under this Agreement.
11. If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company agrees to reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
12. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, delivered by hand
or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representa-
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tives, c/o Chase Securities Inc., 270 Park Avenue, 7th Floor, New York, New York
10260 (Facsimile No.: 212-834-6562), Attention: Global Securitized Finance.
Notices to the Company shall be given to it at 1201 North Market Street, Suite
1406, Wilmington, Delaware 19801 (Facsimile No.: 302-426-6520), Attention:
President. Notices to DBNA shall be given to it at 375 Park Avenue, New York,
New York 10152 (Facsimile No.: 212-308-4252), Attention: Treasurer.
13. This Agreement shall inure to the benefit of and be binding upon
the Company, DBNA, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of Notes from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
14. This Agreement may be signed in counter parts, each of which
shall be an original and all of which together shall constitute one and the same
instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS
OF LAWS PROVISIONS THEREOF.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Company, DBNA and the Under writers
in accordance with its terms.
Very truly yours,
DAIMLER-BENZ VEHICLE RECEIVABLES
CORPORATION
By:
-----------------------------------
Name:
Title:
DAIMLER-BENZ NORTH AMERICA
CORPORATION
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
38
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CHASE SECURITIES INC.
By:
------------------------------
Name:
Title:
SALOMON SMITH BARNEY INC.
By:
------------------------------
Name:
Title:
Acting on behalf of themselves and
as the Representatives of the
several Underwriters
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SCHEDULE I
UNDERWRITERS
Initial Initial Initial Initial
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Notes Notes Notes Notes
------------ ----------- ------------ ------------
Chase Securities Inc................... $ $ $ $
Salomon Smith Barney Inc...............
Deutsche Bank Securities Inc...........
J.P. Morgan Securities Inc.............
Merrill Lynch, Pierce, Fenner & Smith..
Incorporated...............
------------ ----------- ------------ ------------
Total $360,000,000 $508,000,000 $440,000,000 $241,800,000
============ ============ ============ ============
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SCHEDULE II
FORM OF SERVICER'S CERTIFICATE
Chase Securities Inc.
270 Park Avenue, 7th Floor
New York, New York 10017
Attention:
Re: Sale and Servicing Agreement dated as of November 1, 1998 (the
"Sale and Servicing Agreement") between Daimler-Benz Vehicle
Receivables Corporation, as Seller, Mercedes-Benz Credit
Corporation, in its individual capacity and as Servicer,
Daimler-Benz Vehicle Owner Trust 1998-A, as Issuer and
Citibank, N.A., as Indenture Trustee
Determination Date to which this Certificate relates:
___________, 19__
For Monthly Period ending on _________, 19__
1. The undersigned Servicing Officer does hereby certify that the
Pool Factor is ___________.
2. Capitalized terms used in this Certificate shall have the same
meanings as in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of the
above-referenced Determination Date.
MERCEDES-BENZ CREDIT
CORPORATION, as Servicer
By:____________________________
Servicing Officer