Exhibit 1.1
Mercedes-Benz Auto Receivables
Trust 2009-1
$1,081,570,000
Asset Backed Notes
Daimler Retail Receivables
LLC
(Depositor)
Underwriting
Agreement
September 30, 2009
J.P. Morgan Securities
Inc.
Barclays Capital Inc.,
as Representatives of the several
Underwriters
named in Schedule I hereto
c/o J.P. Morgan Securities
Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
1. Introductory .
Daimler Retail Receivables LLC, a Delaware limited liability
company (the “ Depositor ”), proposes to cause
Mercedes-Benz Auto Receivables Trust 2009-1 (the “ Issuing
Entity ”) to issue $312,000,000 principal amount of
Class A-1 0.26670% Asset Backed Notes (the “ Class
A-1 Notes ”), $279,000,000 principal amount of
Class A-2 0.83% Asset Backed Notes (the “ Class A-2
Notes ”), $445,000,000 principal amount of Class A-3
1.67% Asset Backed Notes (the “ Class A-3 Notes
”) and $45,570,000 principal amount of Class A-4 2.43%
Asset Backed Notes (the “ Class A-4 Notes ” and,
together with the Class A-1 Notes, the Class A-2 Notes
and the Class A-3 Notes, the “ Notes ”) and
to sell the Notes to the several underwriters named in Schedule I
hereto (the “ Underwriters ”), for whom you are
acting as representatives (the “ Representatives
”). The assets of the Issuing Entity will include, among
other things, a pool of fixed-rate motor vehicle retail installment
sale contracts and installment loans (the “
Receivables ”) secured by new and used Mercedes-Benz
automobiles, Mercedes-Benz sport utility vehicles or smart fortwo
minicars, including, without limitation, rights to receive certain
payments with respect to such Receivables received after the close
of business on August 31, 2009, and security interests in the
vehicles financed by the Receivables (the “ Financed
Vehicles ”), and any proceeds from claims on certain
related insurance policies thereof. The Receivables will be
transferred to the Issuing Entity by the Depositor. The Receivables
will be serviced for the Issuing Entity by DCFS USA LLC, a Delaware
limited liability company (the “ Servicer ” or
“ DCFS ”). The Notes will be issued pursuant to
the Indenture to be dated as of October 1, 2009 (as amended
and supplemented from time to time, the “ Indenture
”), between the Issuing Entity and U.S. Bank National
Association, a national banking association (the “
Indenture Trustee ”).
Simultaneously with the issuance and
sale of the Notes as contemplated herein, the Issuing Entity will
issue Asset Backed Certificates (the “ Certificates
”), each such Certificate representing a fractional undivided
interest in the Issuing Entity, to the Depositor.
Each of the Underwriters is a
financial institution appearing on the Federal Reserve Bank of New
York’s list of TALF Agents in the TALF Standing Loan Facility
Procedures (each in such capacity, a “ TALF Agent
”), and may be a party to that certain Master Loan and
Security Agreement among the Federal Reserve Bank of New York (the
“ FRBNY ”), as Lender, various TALF Agents party
thereto, The Bank of New York Mellon, as Administrator, and The
Bank of New York Mellon, as Custodian, in the form most recently
posted by the FRBNY at
http://www.newyorkfed.org/markets/talf_docs.html (the
“ MLSA ”), in connection with the Term
Asset-Backed Securities Loan Facility (“ TALF
”). References to the TALF in this Agreement include all
terms and conditions and frequently asked questions and documents
posted by the FRBNY at http://www.newyorkfed.org/markets/talf.html.
The rights, benefits and remedies of the Underwriters under this
Agreement will be for the benefit of, and will be enforceable by,
each Underwriter not only in such capacity but also in its capacity
as a TALF Agent and as a signatory to a letter agreement making
such TALF Agent a party to the MLSA.
Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to them
in the Sale and Servicing Agreement to be dated as of
October 1, 2009 (as amended and supplemented from time to
time, the “ Sale and Servicing Agreement ”),
among the Issuing Entity, the Depositor and the Servicer or, if not
defined therein, in the Indenture or the Trust Agreement to be
dated as of October 1, 2009 (as amended and supplemented from
time to time, the “ Trust Agreement ”), between
the Depositor and Wilmington Trust Company, a Delaware banking
corporation, as owner trustee under the Trust Agreement (the
“ Owner Trustee ”).
2. Representations and
Warranties of the Depositor and DCFS . Each of the Depositor
and DCFS, with respect to itself only (except that any
representation or warranty relating to the Issuing Entity is made
by the Depositor on its behalf), and not with respect to the other,
represents and warrants to and agrees with each Underwriter, on and
as of the date hereof and the Closing Date that:
(a) The Depositor has filed
with the Securities and Exchange Commission (the “
Commission ”) a registration statement (Registration
No. 333-159281) on Form S-3 under the Securities Act of 1933,
as amended (the “ Act ”), including a prospectus
and a form of prospectus supplement, for registration under the Act
of the offering and sale of the Notes. Such registration statement
has been declared effective by the Commission and no stop order
suspending the effectiveness of the registration statement or any
post-effective amendment thereto, if any, has been issued, and no
proceeding for that purpose or pursuant to Section 8A of the
Act has been initiated or threatened by the Commission. Such
registration statement, as amended as of the time it became
effective (including without limitation each deemed effective date
and time in accordance with Rule 430B(f) under the Act (the “
Effective Time ”)), including all material
incorporated by reference therein and all information deemed to be
part thereof pursuant to Rule 430B under the Act is hereinafter
referred to as the “ Registration
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Statement .” The conditions to the use of a
registration statement on Form S-3 under the Act have been
satisfied. The Depositor has filed with the Commission pursuant
Rule 424(b) under the Act a preliminary prospectus supplement dated
September 23, 2009 relating to the sale of the Notes
(including the static pool information required to be disclosed
pursuant to Item 1105 of Regulation AB under the Act, without
regard to whether such information is deemed to be a part of the
prospectus under Item 1105(d) of Regulation AB under the Act,
the “ Preliminary Prospectus Supplement ”)
accompanied by the base prospectus dated September 23, 2009
(the “ Basic Prospectus ”; together with the
Preliminary Prospectus Supplement, the “ Preliminary
Prospectus ”). The Depositor proposes to file with the
Commission pursuant to Rule 424(b) under the Act a final prospectus
supplement relating to the sale of the Notes (including the static
pool information required to be disclosed pursuant to
Item 1105 of Regulation AB under the Act, without regard to
whether such information is deemed to be a part of the prospectus
under Item 1105(d) of Regulation AB under the Act, the “
Prospectus Supplement ”) to the Basic Prospectus
(together with the Prospectus Supplement, the “
Prospectus ”).
For purposes of this Agreement,
“ Effective Date ” means the date of the
Effective Time. “ Execution Time ” shall mean
the date and time that this Agreement is executed and delivered by
the parties hereto. The term “ Contract of Sale
” shall have the meaning given such term in Rule 159 of the
Act and all Commission guidance relating to Rule 159 of the Act.
“ Rule 424 ” refers to such rule under the Act.
Any reference herein to the Registration Statement, the Prospectus,
the Preliminary Prospectus or any Prospectus Supplement shall be
deemed to refer to and include the documents incorporated by
reference therein which were filed under the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”),
on or before the Effective Date of the Registration Statement or
the issue date of the Prospectus, the Preliminary Prospectus or any
Prospectus Supplement, as the case may be; and any reference herein
to the terms “ amend ,” “ amendment
” or “ supplement ” with respect to the
Registration Statement, the Prospectus, the Preliminary Prospectus
or any Prospectus Supplement shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement, or the issue date of
the Prospectus, the Preliminary Prospectus Supplement or any
Prospectus Supplement, as the case may be, and on or prior to the
Closing Date (as defined below) deemed to be incorporated therein
by reference.
(b) The Registration Statement,
at the Effective Time, complied in all material respects with the
applicable requirements of the Act and the Trust Indenture Act of
1939, as amended (the “ Trust Indenture Act ”),
and the respective rules and regulations of the Commission
thereunder (the “ Rules and Regulations ”). The
Prospectus when first filed with the Commission will comply in all
material respects with the applicable requirements of the Act and
the Trust Indenture Act and the Rules and Regulations. The
Registration Statement, at the Effective Time, did not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein not misleading; the Preliminary Prospectus,
as of its date, and the Preliminary Prospectus together with the
“free writing prospectus” in the form attached as Annex
A (the “ Pricing Free Writing Prospectus ” and,
together with the Preliminary Prospectus, the “ Time of
Sale Information ”), at 12:32p.m., New York
time,
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on September 30, 2009, which is
the time when Contracts of Sale with respect to the Notes were
first made (the “ Time of Sale ”), did not, and
at the Closing Date will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Prospectus as
of its date, as of the date of any amendment or supplement thereto
and as of the Closing Date will not include any untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the Depositor makes no representation or
warranty as to the information contained in or omitted from the
Registration Statement, the Time of Sale Information or the
Prospectus in reliance upon and in conformity with information
furnished in writing to the Depositor by any Underwriter through
the Representatives specifically for use in connection with
preparation of the Registration Statement, the Time of Sale
Information or the Prospectus (“ Underwriter
Information ”).
(c) Since the respective dates
as of which information is given in the Registration Statement, the
Time of Sale Information and the Prospectus, (i) there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, management, condition (financial or otherwise),
stockholders’ equity, results of operations, regulatory
status or business prospects of the Depositor or DCFS; and
(ii) neither the Depositor nor DCFS has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to it that, in either case, could reasonably be
expected to materially adversely affect the interests of the
holders of the Notes, other than as set forth or contemplated in
the Time of Sale Information and the Prospectus.
(d) The computer tape of the
Receivables created as of the close of business on August 31,
2009, and made available to the Representatives by the Servicer,
was accurate as of the date thereof and includes all of the
Receivables that are described in Schedule A to the Sale and
Servicing Agreement.
(e) Each of the Depositor and
DCFS is duly organized and is validly existing as a limited
liability company in good standing under the laws of its
jurisdiction of organization and is qualified to transact business
in and is in good standing under the laws of each state in which
its activities as described in the Time of Sale Information and the
Prospectus require such qualification, and has full power,
authority and legal right to own its properties and conduct its
business as such properties and such business are described in the
Time of Sale Information and the Prospectus and to execute and
deliver, and perform its obligations under, this Agreement and the
Basic Documents to which it is a party.
(f) This Agreement has been
duly authorized, executed and delivered by each of the Depositor
and DCFS.
(g) On the date of this
Agreement and on the Closing Date, the representations and
warranties of DCFS and the Depositor in each of the Basic Documents
to which they are a party will be true and correct in all material
respects, except for representations and warranties which relate to
a specific time, which shall be true and correct in all material
respects as of such time.
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(h) DCFS’s sale,
transfer, assignment, set over and conveyance of the Receivables to
the Depositor pursuant to the Receivables Purchase Agreement on the
Closing Date will vest in the Depositor all of DCFS’s right,
title and interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other
encumbrance.
(i) The Depositor’s sale,
transfer, assignment, set over and conveyance of the Receivables to
the Issuing Entity pursuant to the Sale and Servicing Agreement on
the Closing Date will vest in the Issuing Entity all of the
Depositor’s right, title and interest therein or a first
priority perfected security interest therein, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, charge or
other encumbrance.
(j) The Issuing Entity’s
grant of a security interest in 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.
(k) The Indenture has been duly
qualified under the Trust Indenture Act.
(l) The execution, delivery and
performance by each of the Depositor and DCFS of the Basic
Documents to which it is a party has been duly authorized and each
of such Basic Documents, when duly executed and delivered by the
parties thereto, will constitute a legal, valid and binding
obligation of the Depositor and DCFS, as applicable, enforceable
against the Depositor and DCFS in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of
creditors’ rights generally or by equitable principles
relating to enforceability.
(m) When the Notes have been
duly executed and delivered by the Owner Trustee on behalf of the
Issuing Entity, 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, will constitute
legal, valid and binding obligations of the Issuing Entity
enforceable against the Issuing Entity in accordance with their
terms and will be entitled to the benefits and security afforded by
the Indenture, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally or by equitable
principles relating to enforceability.
(n) The execution, delivery and
performance of this Agreement and the Basic Documents and the
consummation by each of DCFS and the Depositor of the transactions
contemplated hereby and thereby shall not conflict with, result in
any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under, the
limited liability company agreement of such party, or
any
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indenture, agreement or other
instrument to which such party is a party or by which it is bound,
result in the creation of any lien upon any material property of
assets of DCFS or the Depositor (other than pursuant to the Basic
Documents) or violate any law, order, rule or regulation applicable
to such party of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over such party or any of its properties; and,
except for the registration of the Notes under the Act, the
qualification of the Indenture under the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and distribution of the Notes by the Underwriters, no permit,
consent, approval of, or declaration to or filing with, any
governmental authority is required to be obtained by such party in
connection with its execution, delivery and performance of this
Agreement or its consummation of the transactions contemplated
hereby.
(o) DCFS possesses all
consents, licenses, certificates, authorizations and permits issued
by the appropriate federal, foreign, state or local regulatory
authorities necessary to conduct its business, and DCFS has not
received any notice of proceedings relating to the revocation or
modification of any such consent, license, certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could
reasonably be expected to have a material adverse effect on or
constitute a material adverse change in, or constitute a
development involving a prospective material adverse effect on or
change in, the condition (financial or otherwise), earnings,
properties, business affairs or business prospects or results of
operations of DCFS.
(p) The Depositor and the
Issuing Entity each possesses all consents, licenses, certificates,
authorizations and permits issued by the appropriate federal or
state regulatory authorities necessary for the ownership of its
respective property or the conduct of its respective business
(including the ownership of the Receivables and the servicing of
the Receivables by the Servicer on its behalf), and neither the
Depositor nor the Issuing Entity has received any notice of
proceedings relating to the revocation or modification of any such
consent, license, certificate, authorization or permit.
(q) There are no proceedings or
investigations pending or, to DCFS’s or the Depositor’s
knowledge, no proceeding or investigations threatened, against such
party before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality having jurisdiction
over such party or its properties (i) asserting the invalidity
of this Agreement or any of the Notes, (ii) seeking to prevent
the issuance of any of the Notes or the consummation of any of the
transactions contemplated by this Agreement, (iii) that may
adversely affect the federal or state income, excise, franchise or
similar tax attributes of the Notes, (iv) seeking any
determination or ruling that might materially and adversely affect
the performance by such party of its obligations under, or the
validity or enforceability of, the Notes or this Agreement or
(v) that could reasonably be expected to have a material
adverse effect on or constitute a material adverse change in, or
constitute a development involving a prospective material adverse
effect on or change in, the condition (financial or otherwise),
earnings, properties, business affairs or business prospects or
results of operations of the Depositor or DCFS.
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(r) The Depositor (i) is
not in violation of its limited liability company agreement,
(ii) is not in default, in any material respect, and no event
has occurred which, with notice or lapse of time or both, would
constitute such a default, in the Depositor’s due performance
or observance of any term, covenant or condition contained in any
indenture, agreement, mortgage, deed of trust or other instrument
to which the Depositor is a party or by which the Depositor is
bound or to which any of the Depositor’s property or assets
is subject or (iii) is not in violation in any respect of any
law, order, rule or regulation applicable to the Depositor or any
of the Depositor’s property of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over it or any of its property,
except any such violation that could not reasonably be expected to
have a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the
Depositor.
(s) The Basic Documents conform
in all material respects with the descriptions thereof contained in
the Registration Statement, the Time of Sale Information and the
Prospectus.
(t) Neither the Issuing Entity
nor the Depositor is, and after giving effect to the sale of the
Notes and the use of proceeds thereof is, or will be required to
register as an “investment company” or under the
“control” of an “investment company” within
the meaning thereof as defined in the Investment Company Act of
1940, as amended (the “ Investment Company Act
”).
(u) On the date on which the
first bona fide offer of the Notes was made, the Depositor was not
an “ineligible issuer,” as defined in Rule 405 of the
Rules and Regulations.
(v) Assuming the Notes receive
the ratings described in the Preliminary Prospectus, the Notes
satisfy all requirements to be “eligible collateral”
(“ Eligible Collateral ”) as such term is
defined under the MLSA with reference to the Term Asset-Backed
Securities Loan Facility: Terms and Conditions, as in effect on the
date of the Preliminary Prospectus or the date of the Prospectus,
posted by the FRBNY at
http://www.newyorkfed.org/markets/talf_terms.html and the Term
Asset-Backed Securities Loan Facility Frequently Asked Questions,
as in effect on the date of the Preliminary Prospectus or the date
of the Prospectus, posted by the FRBNY at
http://www.newyorkfed.org/markets/talf_faq.htmlunder TALF;
provided , however , that, except as specifically set
forth in this Agreement, neither the Depositor nor DCFS makes any
representation or warranty with respect to the application of any
provision of the TALF or the availability of, or the eligibility of
a borrower for, loans under the TALF.
(w) The Notes and the
Receivables and the Financed Vehicles underlying the Notes satisfy
all applicable criteria for securities relating to “prime
retail auto loans” under TALF.
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(x) Each of the Issuing Entity
and DCFS has satisfied, or by the Closing Date shall have
satisfied, all requirements under the TALF applicable to it with
respect to the Notes.
(y) The Preliminary Prospectus,
as of its date and the Time of Sale, contains, and the Prospectus
will contain, all information required to be included therein under
TALF in order for the Notes to be Eligible Collateral.
(z) As of the date hereof and
the Closing Date, the representations and warranties of DCFS and
the Issuing Entity contained in the Certification as to TALF
Eligibility to be attached as Exhibit I to the Prospectus (the
“ TALF Certification ”) are and will be true and
correct and are repeated herein as though fully set forth
herein.
3. Purchase, Sale, and
Delivery of the 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 sell
to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Depositor, (a) at a purchase
price of 99.85000% of the principal amount thereof, the respective
principal amount of the Class A-1 Notes set forth opposite the
name of such Underwriter in Schedule I hereto, (b) at a
purchase price of 99.73353% 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,
(c) at a purchase price of 99.69751% 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 and (d) at a purchase price of 99.57976% 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. Delivery of and payment for the
Notes shall be made at the office of Sidley & Austin LLP,
555 California Street, San Francisco, California 94104 on
October 9, 2009 (the “ Closing Date ”).
Delivery of the Notes shall be made against payment of the purchase
price in immediately available funds drawn to the order of the
Depositor. The Notes to be so delivered will be initially
represented 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 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 set forth
in the Indenture.
4. Offering by
Underwriters . It is understood that the Underwriters propose
to offer the Notes for sale to the public (which may include
selected dealers) as set forth in the Time of Sale Information and
the Prospectus.
5. Covenants of the
Depositor and DCFS . The Depositor and DCFS, as applicable,
each covenants and agrees with each of the Underwriters as set
forth below. For purposes of this Section, the Depositor and DCFS
shall jointly make each of the covenants set forth below in clauses
(b), (c), (f), (g), (h), (i), (j) and (k) and the entity
specified in the covenant below shall make the covenants set forth
in all of the other clauses below.
(a) The Depositor will prepare
a Prospectus Supplement setting forth the terms of the Notes not
specified in the Preliminary Prospectus Supplement, including the
price at which the Notes are to be purchased by the Underwriters,
the initial public ›
8
offering price, the selling
concessions and allowances, and such other information as the
Depositor deems appropriate and shall furnish a copy to the
Representatives in accordance with Section 5(b) of this
Agreement. The Depositor will transmit the Prospectus to the
Commission pursuant to Rule 424(b) by a means reasonably calculated
to result in filing that complies with all applicable provisions of
Rule 424(b). The Depositor will advise the Representatives promptly
of any such filing pursuant to Rule 424(b). The Depositor will
transmit the Pricing Free Writing Prospectus to the Commission
pursuant to Rule 433(d) by a means reasonably calculated to result
in filing that complies with all applicable provisions of Rule
433(d). The Depositor will advise the Representatives promptly of
any such filings.
(b) At any time when a
prospectus relating to the Notes is required to be delivered under
the Act (including delivery as contemplated by Rule 172 under the
Act), the Depositor and DCFS will advise the Representatives
promptly of any proposal to amend or supplement the Registration
Statement or the Prospectus, and will not effect such amendment or
supplement without the Representatives’ consent, which
consent will not unreasonably be withheld. Subject to the foregoing
sentence, if filing of a supplement to the Prospectus is otherwise
required under Rule 424(b), the Depositor will file the supplement
to the Prospectus properly completed 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 the Representatives of such timely filing. The
Depositor and DCFS will also advise the Representatives promptly of
any request by the Commission for any amendment of or supplement to
the Registration Statement or the Prospectus or for any additional
information and the Depositor and DCFS will also advise the
Representatives promptly of any amendment or supplement to the
Registration Statement or the Prospectus 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 or pursuant to Section 8A of the
Act, and each of the Depositor and DCFS 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 Notes is required to be delivered under
the Act (including delivery as contemplated by Rule 172 under the
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
such time to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the
respective rules and regulations thereunder, the Depositor and DCFS
promptly will notify the Representatives and the Depositor will
prepare and file, or cause to be prepared and filed, with the
Commission, subject to paragraph (b) of this Section 5,
an amendment or supplement that will correct such statement or
omission, or effect such compliance. Neither the
Representatives’ consent to, nor the Underwriters’
distribution of, any amendment or supplement to the Time of Sale
Information or the Prospectus shall operate as a waiver or
limitation on any right of any Underwriter hereunder.
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(d) The Depositor will furnish
to the Underwriters copies of the Registration Statement (one of
which will be signed and will include all exhibits), the Time of
Sale Information, the Prospectus and all amendments and supplements
to such documents, in each case as soon as available and in such
quantities as the Underwriters reasonably request.
(e) The Depositor will assist
the Representatives in arranging for the qualification of the Notes
for sale and determination of their eligibility for investment
under the laws of such jurisdictions in the United States, or as
necessary to qualify for Euroclear Bank S.A./N.V. or Clearstream
Banking, société anonyme, as the Representatives
designates and will continue to assist the Representatives in
maintaining such qualifications in effect so long as required for
the distribution; provided , however , that neither
the Depositor nor DCFS shall be required to qualify to do business
in any jurisdiction where it is now not qualified or to take any
action which would subject it to general or unlimited service of
process in any jurisdiction in which it is now not subject to
service of process.
(f) The Depositor and DCFS will
(i) furnish or make available to the Underwriters or their
counsel such additional documents and information regarding the
Depositor, DCFS and their respective affairs as the Underwriters
may from time to time reasonably request prior to the Closing Date,
including any and all documentation reasonably requested in
connection with its due diligence efforts regarding information in
the Time of Sale Information and the Prospectus and in order to
evidence the accuracy or completeness of any of the conditions
contained in this Agreement and (ii) provide the Underwriters
or their advisors, or both, prior to acceptance of its
subscription, the opportunity to ask questions of, and receive
answers with respect to such matters.
(g) So long as any of the Notes
are outstanding, or until such time as the Representatives shall
advise the Depositor that the Underwriters have ceased to maintain
a secondary market in the Notes, whichever occurs first, the
Depositor will furnish to the Representatives upon request to the
extent not otherwise available from any publicly available source
(i) all documents distributed to Noteholders or filed with the
Commission pursuant to the Exchange Act or any order of the
Commission thereunder, (ii) the annual statement of
compliance, the Servicer’s report on its assessment of
compliance with the minimum servicing criteria and the related
attestation report delivered pursuant to the Sale and Servicing
Agreement, (iii) each certificate and the annual statements of
compliance delivered to the Indenture Trustee pursuant to the
Indenture, (iv) each material amendment to any Basic Document,
(v) each monthly investor report for the Issuing Entity and
(vi) all opinions, certificates and other documents or
information with respect to the perfection and priority of
interests in the Receivables delivered by it to the Owner Trustee
and the Indenture Trustee.
(h) On or before the Closing
Date, the Depositor shall cause the computer records of the
Depositor and the Servicer relating to the Receivables to be marked
to show the Issuing Entity’s absolute ownership of the
Receivables, and from and after the Closing Date neither the
Depositor nor the Servicer shall take any action inconsistent with
the Issuing Entity’s ownership of such Receivables, other
than as permitted by the Sale and Servicing Agreement.
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(i) To the extent, if any, that
the rating provided with respect to the Notes by the rating agency
or agencies that initially rate the Notes is conditional upon the
furnishing of documents or the taking of any other actions by the
Depositor or DCFS, such party shall furnish such documents and take
any such other actions.
(j) For the period beginning on
the date of this Agreement and ending 15 days after the Closing
Date, unless waived by the Underwriters, none of the Depositor,
DCFS or any trust originated, directly or indirectly, by the
Depositor or DCFS will offer to sell or sell notes (other than the
Notes) collateralized by, or certificates (other than the
Certificates) evidencing an ownership interest in, receivables
generated pursuant to fixed-rate motor vehicle installment sale
contracts and installment loans.
(k) Each of the Depositor and
DCFS shall take all actions, and cause the Issuing Entity to take
all actions, necessary to ensure that, on the Closing Date, the
Notes qualify as Eligible Collateral under the TALF and shall fully
and timely perform all actions required of them (and cause the
Issuing Entity to fully and timely perform all actions required of
it) pursuant to the TALF Certification. For so long as any of the
Notes remain outstanding, (x) DCFS will comply with its
obligations under paragraph 5 of the TALF Certification (i) to
provide notice to the FRBNY and all registered holders of the Notes
in writing if certain statements are not correct no later than 9:00
a.m., New York City time, on the fourth Business Day (as defined in
the MLSA) following such determination and (ii) to issue a
press release regarding such determination no later than 9:00 a.m.,
New York City time, on the fourth Business Day (as defined in the
MLSA) following such determination, and DCFS will promptly notify
each Underwriter of such determination and (y) DCFS will
comply with its obligations under paragraph 6 of the TALF
Certification to provide, as promptly as practicable upon the
request of the FRBNY or any registered holder of the Notes, copies
of (i) the Governing Documents (as such term is defined in the
MLSA) for the Notes and (ii) the servicer and/or trustee
reports or other similar reports provided or made available to
investors in connection with the Notes.
6. Payment of Expenses
. The Depositor will pay all expenses incident to the transactions
contemplated by this Agreement, whether or not the transactions
contemplated herein are consummated, including (i) the
preparation and filing of the Registration Statement as originally
filed and of each amendment thereto, (ii) the preparation,
printing and distribution of the Preliminary Prospectus and any
other Time of Sale Information, each other preliminary prospectus,
all computational materials, if any, and the Prospectus and each
amendment or supplement thereto and delivery of copies thereof to
the Underwriters, (iii) the preparation of this Agreement and
the Basic Documents, (iv) the preparation, issuance and
delivery of the Notes to the Underwriters, (v) the fees and
disbursements of DCFS’s and the Depositor’s counsel,
(vi) the fees and disbursements of the Depositor’s
independent registered public accounting firm, (vii) the
qualification of the Notes under securities laws in accordance with
the provisions of Section 5(e) of this Agreement, including
filing fees and the fees and disbursements of counsel in connection
therewith and in connection with the preparation of any blue sky or
legal investment
11
survey and the delivery thereof to any
Underwriter, (viii) any fees charged by rating agencies for
the rating of the Notes, (ix) the fees and disbursements of
the Indenture Trustee and its counsel, if any, (x) the fees
and disbursements of the Owner Trustee and its counsel and
(xi) the costs and expenses associated with qualifying the
Notes as Eligible Collateral.
7. Conditions of the
Obligations of the Underwriters . The obligations of the
Underwriters to purchase and pay for the Notes will be subject to
the accuracy of the representations and warranties on the part of
the Depositor and DCFS herein, to the accuracy of the
certifications of officers of the Depositor and DCFS 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 Registration Statement
shall be effective at the Execution Time, 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 or pursuant to Section 8A of the Act shall
have been instituted or, to the knowledge of the Depositor or the
Representatives, shall be contemplated by the
Commission.
(b) Each of the Preliminary
Prospectus and the Prospectus and any supplements thereto shall
have been filed (if required) with the Commission in accordance
with the Rules and Regulations and Section 5(a) hereof. The
Pricing Free Writing Prospectus shall have been filed with the
Commission in accordance with Rule 433(d) of the Rules and
Regulations.
(c) On or prior to the date of
this Agreement and on or prior to the Closing Date, the
Representatives shall have received a letter or letters, dated as
of the date of this Agreement and as of the Closing Date,
respectively, of KPMG LLP, independent registered public
accountants, substantially in the form of the drafts to which the
Representatives have previously agreed and otherwise in form and
substance satisfactory to the Representatives and their
counsel.
(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 Issuing Entity, the Depositor or DCFS which, in the judgment of
the Representatives, materially impairs the investment quality of
the Notes or makes it impractical or inadvisable to market the
Notes; (ii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting
of minimum or maximum prices for trading on such exchange, or a
material disruption in commercial banking or securities settlement
or clearance services in the United States or with respect to
Clearstream or Euroclear systems in Europe; (iii) any general
commercial banking moratorium declared by Federal, Delaware or New
York authorities; or (vi) 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 if, in the reasonable judgment
of the Representatives, the effect of any such outbreak,
escalation, declaration, calamity or emergency on the U.S.
financial markets makes it impractical or inadvisable to proceed
with the offering, sale of and payment for the Notes.
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(e) The Representatives shall
have received opinions of Sidley Austin LLP, counsel to DCFS, the
Depositor and the Issuing Entity and such other counsel acceptable
to the Underwriters addressed to the Representatives, dated the
Closing Date and satisfactory in form and substance to the
Representatives and their counsel, substantially to the effect
that:
(i) DCFS 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 license or approval would render any
Receivable unenforceable by the Depositor, the Owner Trustee or the
Indenture Trustee.
(ii) The Depositor 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 license or approval would have
a material adverse effect on the Receivables as a whole.
(iii) When the Notes have been
duly executed and delivered by the Owner Trustee on behalf of the
Issuing Entity, 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, will constitute
legal, valid and binding obligations of the Issuing Entity
enforceable against the Issuing Entity in accordance with their
terms and will be entitled to the benefits and security afforded by
the Indenture, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally or by equitable
principles relating to enforceability.
(iv) Each of the Basic
Documents (other than the Trust Agreement) to which the Depositor
is a party has been duly executed and delivered by the Depositor,
and is a legal, valid and binding obligation of the Depositor
enforceable against the Depositor in accordance with its terms
except as enforceability may be limited by applicable
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