Exhibit 1.2
DaimlerChrysler North America Holding Corporation
$[ ] Principal Amount At Maturity
[Description of Securities]
Guaranteed as to Payment of Principal (Premium, if any)
and Interest, if any, by DaimlerChrysler AG
Underwriting Agreement
New York, New York
[Date]
[Name of Underwriter(s)]
[Address of Underwriter(s)]
Ladies and Gentlemen:
DaimlerChrysler North America Holding Corporation, a Delaware corporation
("DCNAH" or the "Issuer"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), the principal amount of its debt
securities (the "Debt Securities") identified in Schedule I hereto, which
shall be unconditionally guaranteed as to payment of principal (premium, if
any), interest and additional amounts, if any, by DaimlerChrysler AG, as
guarantor (the "Guarantor") (the "Guarantees" and, together with the Debt
Securities, the "Securities") to be issued under an indenture dated as of
September 17, 1996 among Daimler-Benz Aktiengesellschaft (succeeded by
DaimlerChrysler AG), as guarantor, Daimler-Benz North America Corporation (now
DaimlerChrysler North America Holding Corporation), Daimler-Benz Canada, Inc.
(now DaimlerChrysler Canada Finance Inc.) Daimler-Benz International Finance
B.V. (now DaimlerChrysler International Finance B.V.), and The Chase Manhattan
Bank, as trustee (the "Trustee"), as amended by a first supplemental indenture
dated December 21, 1998 (the "Indenture").
The Securities will be issuable in registered form. This Agreement
relates only to the sale of, and your obligations hereunder shall be
applicable only with respect to, Securities issuable in registered form.
1. Representations and Warranties. (a) Each of the Issuer and the
Guarantor, jointly and severally, represent and warrant to, and agree with,
each Underwriter as follows:
(i) The Issuer and the Guarantor have prepared and filed a
Registration Statement on Form F-3 (No. 333-10366) in respect of the
Securities with the Securities and Exchange Commission (the "Commission")
in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"). Pursuant to Rule 429 under the
Securities Act, the prospectus contained in the Registration Statement is
a combined prospectus and relates to the Registration Statement on Form
F-3 (No. 333-9328) that was previously filed by Daimler-Benz
Aktiengesellschaft, the predecessor to the Guarantor, and Daimler-Benz
North America Corporation, now named DCNAH. The Issuer and the Guarantor
also have filed with, or propose to file with, the Commission pursuant to
Rule 424 under the Securities Act supplements to the prospectus included
in the Registration Statement that will describe certain terms of the
Securities. Such Registration Statements and the exhibits thereto, as
amended and supplemented at the date of this Agreement, are hereinafter
collectively referred to as the "Registration Statement" and the
prospectus in the form in which it appears in the Registration Statement
is hereinafter referred to as the "Basic Prospectus". The Basic
Prospectus, as supplemented by the prospectus supplement or supplements
specifically relating to the Securities in the form filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 under the
Securities Act is hereinafter referred to as the "Final Prospectus". Any
reference in this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of Prospectus (a "preliminary
prospectus") previously filed with the Commission pursuant to Rule 424 or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
F-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") on or before the
date of this Agreement and the date of the Basic Prospectus, any
preliminary prospectus or the Final Prospectus, as the case may be; and
any reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus
or the Final Prospectus, shall be deemed to refer to and include any
documents filed under the Exchange Act after the date of this Agreement,
or the date of the Basic Prospectus, any preliminary prospectus or the
Final Prospectus, as the case may be, which are deemed to be incorporated
by reference therein;
(ii) The Registration Statement has been declared effective by the
Commission under the Securities Act; 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 Issuer or the Guarantor, threatened by the Commission; and the
Registration Statement and Final Prospectus (as amended or supplemented
if the Issuer or the Guarantor shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Trust Indenture Act"), and do not and will
not, as of the applicable effective date as to the Registration Statement
and any amendment or supplement thereto and as of the date of the Final
Prospectus and any amendment or supplement thereto, contain 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, in the
light of the circumstances under which they were made, not misleading;
except that the foregoing representations and warranties shall not apply
to statements or omissions in the Registration Statement or the Final
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Issuer or the Guarantor in
writing or in electronic format by such Underwriter expressly for use
therein or to those parts of the Registration Statement which constitute
the Trustee's Statement of Eligibility and Qualification on Form T-1
under the Trust Indenture Act;
(iii) The documents incorporated by reference in the Final
Prospectus, when they became effective or were filed with the Commission,
as the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and none of such documents, when read together with the other information
in or incorporated by reference in the Final Prospectus, 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, in light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Final Prospectus, or any amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and, when read together with the other information in or
incorporated by reference in the Final Prospectus, will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(iv) The accountants who certified the financial statements included
or incorporated by reference in the Final Prospectus are independent
public accountants within the meaning of the Securities Act;
(v) The financial statements (and the notes thereto) included or
incorporated by reference in the Registration Statement and the Final
Prospectus, as well as the notes to financial statements of any other
entity included therein, present fairly in all material respects the
consolidated financial condition of the Guarantor and its consolidated
subsidiaries, and such other entity, as the case may be, as of the dates
indicated and the consolidated results of operations and the consolidated
cash flows of the Guarantor and its consolidated subsidiaries or such
other entity, as the case may be, at the dates and for the periods
specified. Except as otherwise stated therein, such financial statements
(and the notes thereto) have been prepared in conformity with accounting
principles generally accepted in the United States ("U.S. GAAP") applied
on a consistent basis throughout the periods involved. The financial
statement schedules included or incorporated by reference in the
Registration Statement and the Final Prospectus present fairly in
accordance with U.S. GAAP the information required to be stated therein
and have been prepared in accordance with the applicable requirements of
the Securities Act and the Exchange Act, as applicable, except that
pursuant to relief from the Commission separate financial statements of
the Issuer have not been included pursuant to Staff Accounting Bulletin
No. 53;
(vi) Except as set forth or contemplated in the Final Prospectus,
since the date of the most recent audited consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Final Prospectus, there has not been any material
adverse change, or any development involving a prospective material
adverse change in the business, consolidated financial condition,
stockholders' equity or results of operations of the Issuer or the
Guarantor and its subsidiaries taken as a whole. As used herein,
"subsidiary" shall mean any direct or indirect subsidiary, partnership,
joint venture or other entity;
(vii) DCNAH is duly incorporated and organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Final Prospectus and is in good standing under the laws of each
jurisdiction in which it owns or leases property, 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 Issuer and its subsidiaries taken as a whole;
(viii) The Guarantor is a stock corporation duly registered with the
Commercial Register ("Handelsregister") in Stuttgart and validly existing
under the laws of Germany, with power and authority (corporate and other)
under such laws to own its properties and conduct its business as
described in the Final Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing (to the extent the concept of good standing exists under the
applicable law) under the laws of each jurisdiction in which it owns or
leases property, or conducts any business so as to require such
qualification, other than where the failure to be so qualified or be in
good standing (to the extent the concept of good standing exists under
the applicable law) would not have a material adverse effect on the
Guarantor and its subsidiaries, taken as a whole;
(ix) Each Material Subsidiary (as defined below) organized in
Germany is duly registered with the Handelsregister at its respective
seat and validly existing under the laws of Germany with power and
authority (corporate and other) under such laws to own its properties and
conduct its business as described in the Final Prospectus. Each Material
Subsidiary that is not organized in Germany is duly organized under its
jurisdiction of incorporation and is validly existing under the laws of
its jurisdiction with power and authority (corporate and other) under
such laws to own its properties and conduct its business as described in
the Final Prospectus; and none of the Material Subsidiaries owns or
leases property, or conducts any business, in any foreign jurisdiction
that would require such Material Subsidiary to be qualified as a foreign
corporation in such jurisdiction where it has not so qualified, other
than where the failure to be so qualified would not have a material
adverse effect on the Guarantor and its Material Subsidiaries, taken as a
whole. As used herein, "Material Subsidiary" shall mean any subsidiary of
the Guarantor that is or would be a "significant subsidiary" within the
meaning of Rule 1-02(w) of Regulation S-X. As of the date hereof, the
term Material Subsidiaries means DaimlerChrysler Corporation, Chrysler
Financial Company L.L.C., Chrysler International Services S.A. and
DaimlerChrysler Services AG;
(x) This Agreement has been duly authorized, executed and delivered
by the Issuer and the Guarantor and (assuming due authorization,
execution and delivery by the Underwriters hereto) constitutes the valid
and binding agreement of the Issuer and the Guarantor enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors' rights
and to general principles of equity, and except as rights to indemnity
and contribution hereunder or thereunder may be limited by applicable
law;
(xi) The Debt Securities have been duly authorized, and, when
executed, issued and delivered in accordance with the Indenture and
delivered to and paid for by the purchasers thereof in accordance with
this Agreement, will have been duly executed, issued and delivered by the
Issuer and will constitute valid and binding obligations of the Issuer
enforceable in accordance with their terms, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general principles of equity, entitled
to the benefits provided by the Indenture; the Guarantees have been duly
authorized and, when duly executed, issued and delivered, will constitute
valid and binding obligations of the Guarantor enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity, and entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized, executed and delivered
by the Issuer and the Guarantor and qualified under the Trust Indenture
Act and (assuming due authorization, execution and delivery by the
Trustee) constitutes a valid and binding instrument enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity; and the Indenture and the Guarantees conform, and
the Securities will conform, to the descriptions thereof in the Final
Prospectus as amended or supplemented relating to such issuance of
Securities;
(xii) Except as set forth or contemplated in the Final Prospectus,
neither the Issuer nor the Guarantor or its Material Subsidiaries is, or
with the giving of notice or lapse of time or both would be, in violation
of or in default under, their respective Charter Documents (as defined
below) or any material indenture, mortgage, deed of trust, loan agreement
or other financing agreement or instrument to which the Issuer, or the
Guarantor or its subsidiaries is a party or by which any of them or any
of their respective properties is bound, except for violations and
defaults which individually or in the aggregate are not material either
to the Issuer or to the Guarantor and its subsidiaries taken as a whole;
the execution and delivery of this Agreement by the Issuer and the
Guarantor, the issuance and sale of the Securities and the performance by
the Issuer and the Guarantor of their respective obligations under the
Securities, the Indenture, the Guarantees and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under (A) the Charter Documents (as defined
below), of the Issuer or the Guarantor, (B) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which the Issuer or the Guarantor or its subsidiaries is a party or by
which any of such companies is bound or to which any of the property or
assets of such companies is subject, which breach or default would,
singly or in the aggregate, reasonably be expected to have a material
adverse effect on the business, consolidated financial condition,
stockholders' equity or results of operations of the Issuer, and the
Guarantor and its subsidiaries taken as a whole or (C) any applicable law
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Issuer or the
Guarantor or its Material Subsidiaries, or any of their respective
properties. No consent, approval, authorization, order, registration or
qualification of or with any German or U.S. court or governmental agency
or body is required for the issue and sale of the Securities by the
Issuer or the Guarantor or the consummation of the other transactions
contemplated by this Agreement, the Indenture or the Guarantees, except
such as have been obtained under the Securities Act or the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws or foreign currency or exchange control regulations in connection
with the offer and sale of the Securities. For the purposes of this
Agreement, the term "Charter Documents" shall mean (i) for DCNAH, its
Certificate of Incorporation and By-laws and (ii) for the Guarantor, its
Memorandum and Articles of Association and (iii) the relevant charter,
by-law and equivalent documents for the Material Subsidiaries, all as may
be amended, supplemented or restated from time to time;
(xiii) There are no legal or governmental proceedings pending or, to
the knowledge of the Issuer or the Guarantor, threatened or contemplated
to which the Issuer or the Guarantor or its Material Subsidiaries, as the
case may be, is or may be a party or to which any property of the Issuer
or the Guarantor or its Material Subsidiaries is or may be the subject
which are required to be described in the Final Prospectus pursuant to
the Securities Act which are not so described; 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 Final Prospectus which are not filed or
described as required;
(xiv) Neither the Issuer nor the Guarantor are "investment
companies" as defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act"), and the offer and sale of the Securities
will not subject the Issuer or the Guarantor to registration under, or
result in a violation of, the Investment Company Act;
(xv) Immediately after any sale of Securities by the Issuer
hereunder, the aggregate amount of Securities which shall have been
issued and sold by the Issuer hereunder and of any debt securities of the
Issuer (other than the Securities) that shall have been issued and sold
pursuant to the Registration Statement will not exceed the amount
authorized by the Issuer from time to time or the amount of debt
securities registered under the Registration Statement; and
(xvi) The Debt Securities are rated "A-1" by ▇▇▇▇▇'▇ Investors
Service, Inc. and "A+" by Standard & Poor's Ratings Services, or such
other rating as to which the Issuer and the Guarantor shall have most
recently notified the Underwriters pursuant to Section 5(e) hereof.
(xvii) The authorized, issued and outstanding shares of capital
stock of the Guarantor is as set forth in the "Capitalization" section of
the Final Prospectus (except for subsequent issuances thereof, if any,
pursuant to reservations, agreements or employee benefit plans or
pursuant to the exercise of convertible securities or options). Such
shares of capital stock have been duly authorized and validly issued by
the Guarantor and are fully paid and non-assessable, and none of such
shares of capital stock was issued in violation of preemptive or similar
rights of any securityholder of the Guarantor.
(b) Any certificate designated as such signed by any officer of the
Issuer and the Guarantor and delivered to the Underwriters or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Issuer or the Guarantor to the Underwriters as to the matters covered
thereby.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Issuer and the
Guarantor agree to sell to each Underwriter, and each Underwriter agrees
severally and not jointly to purchase from the Issuer and the Guarantor, at
the purchase price set forth in Schedule I hereto, the principal amount of
Securities set forth opposite such Underwriter's name in Schedule II hereto,
except that, if Schedule I hereto provides for the sale of Securities pursuant
to delayed delivery arrangements, the respective principal amounts of
Securities to be purchased by the Underwriters shall be as set forth in
Schedule II hereto less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the Underwriters
are herein sometimes called the "Underwriters' Securities" and Securities to
be purchased pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Issuer and the Guarantor
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto, but with such changes
therein as the Issuer and the Guarantor may authorize or approve. The
Underwriters will endeavor to make such arrangements and, as compensation
therefor, the Issuer will pay to the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal amount of
Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Issuer and the Guarantor will
enter into Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the Issuer and
the Guarantor but, except as the Issuer and the Guarantor may otherwise agree,
each such Delayed Delivery Contract must be for not less than the minimum
principal amount set forth in Schedule I hereto, and the aggregate principal
amount number of Contract Securities may not exceed the maximum aggregate
principal amount number set forth in Schedule I hereto. The Underwriters will
not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Securities to be purchased
by each Underwriter as set forth in Schedule II hereto shall be reduced by an
amount that shall bear the same proportion to the total principal amount of
Contract Securities as the principal amount of Securities set forth opposite
the name of such Underwriter bears to the aggregate principal amount set forth
in Schedule II hereto, except to the extent that you determine that such
reduction shall be otherwise than in such proportion and so advise each Issuer
and the Guarantor in writing; provided that the total principal amount of
Securities to be purchased by all Underwriters shall be the aggregate
principal amount set forth in Schedule II hereto less the aggregate principal
amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made at the location, in the currency, on the date and at
the time specified in Schedule I hereto (or such later date not later than
five business days after such specified date as the Underwriters shall
designate), which date and time may be postponed by agreement between the
Underwriters and the Issuer and the Guarantor or as provided in Section 9
hereof (such date and time of delivery and payment for the Underwriters'
Securities being herein called the "Closing Date"). Delivery of the
Underwriters' Securities shall be made to the Underwriters for the respective
accounts of the several Underwriters against payment by the several
Underwriters of the purchase price thereof specified in Schedule II to or upon
the order of the Issuer and the Guarantor by a check or checks in Federal
funds or by wire transfer of immediately available funds to an account
specified by the Issuer and the Guarantor. Certificates for the Underwriters'
Securities shall be registered in such names and in such denominations as the
Underwriters may request not less than the business day prior to the Closing
Date.
The Issuer and the Guarantor agree to have the Underwriters' Securities
available for inspection, checking and packaging by the Underwriters in New
York, New York, not later than 1:00 PM on the business day prior to the
Closing Date.
4. Offering by Underwriters. (a) It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Final Prospectus.
(b) Each Underwriter, severally and not jointly, represents and
agrees that:
(i) (A) It has not offered or sold and will not offer or sell any
Securities to persons in the United Kingdom prior to the expiry of the
period of six months from the issue date of the Securities except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purpose of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995;
(B) It has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connection with the
issue of the Securities to a person who is of a kind described in Article
11(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 (as amended) or is a person to whom such document
may otherwise lawfully be issued or passed on; and
(C) It has complied and will comply with all applicable provisions
of the Financial Services Act 1986 with respect to anything done by it in
relation to any Securities in, from or otherwise involving the United
Kingdom.
(ii) It has not publicly promoted and will not publicly promote the
offer or sale of the Notes by conducting a generalized advertising or
cold-calling campaign within or outside The Netherlands.
(iii) Except for registration under the Securities Act of 1993, as
amended, and qualification of the Securities for offer and sale, and the
determination for their eligibility for investment, under the applicable
securities laws of such jurisdictions within the United States as the
Underwriters may designate pursuant to Section 5(b) of the Underwriting
Agreement, no action has been or will be taken by the Guarantor or by the
Issuer that would permit the offer or sale of the Securities or any interest
therein or possession or distribution of the Final Prospectus or any amendment
thereto or any other offering material relating to the Securities in any
jurisdiction where action for that purpose is required. Without prejudice to
paragraph (a) above, it has not and will not directly or indirectly offer,
sell or deliver any Securities or any interest therein or distribute or
publish the Final Prospectus, the Basic Prospectus or any other offering
material relating to the Securities in or from any jurisdiction except under
circumstances that will result in compliance with all applicable laws and
regulations and will not impose any obligations on the Issuer, except as
provided herein. Subject as provided above, each Underwriter shall, if
required by applicable law, furnish to each person to whom it offers, sells or
delivers the Securities a copy of the Final Supplement. No Underwriter is
authorized to give any information or to make any representation not contained
in the Final Prospectus in connection with the offer and sale of the
Securities.
(iv) It will comply with the German Securities Selling Prospectus
Act ("Wertpapier-Verkaufsprospektgesetz") of December 13, 1990, as
amended.
5. Covenants of the Issuer and the Guarantor. Each of the Issuer and the
Guarantor covenant and agree with the several Underwriters:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Final Prospectus prior to the termination of the
offering of the Securities pursuant to this Agreement without the
approval of the Underwriters, such approval not to be unreasonably
withheld, after reasonable opportunity to comment thereon, provided,
however, that this clause shall not prevent the Issuer or the Guarantor
from filing any amendment or supplement which, in the written opinion of
the Guarantor's counsel, is required by law to be filed; provided,
further, that the foregoing shall not apply to any of the Issuer's or the
Guarantor's periodic filings with the Commission described in subsection
(iii) below, copies of which filings the Issuer and the Guarantor will
cause to be delivered to the Underwriters promptly after their
transmission to the Commission for filing, (ii) subject to the foregoing
clause (i), to cause the Final Prospectus to be mailed to the Commission
for filing pursuant to Rule 424(b) or will cause the Final Prospectus to
be filed with the Commission pursuant to said rule; and (iii) promptly to
file all reports and any definitive proxy or information statements
required to be filed by the Issuer or the Guarantor with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities. The Issuer or the Guarantor will
promptly advise the Underwriters (i) when the Final Prospectus shall have
been transmitted to the Commission for filing pursuant to Rule 424(b),
(ii) of the filing of any amendment or supplement to the Basic Prospectus
or any amendment to the Registration Statement and of the effectiveness
of any such amendment to the Registration Statement, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any order preventing or suspending the
use of any prospectus relating to the Securities or the initiation or
threatening of any proceeding for that purpose, or of any request by the
Commission for any amendment or supplement of the Registration Statement
or Final Prospectus or for additional information; and (iv) of the
receipt by the Issuer or the Guarantor of any notification with respect
to any suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose. The Issuer and the Guarantor agree to
use their best efforts to prevent the issuance of any such stop order or
of any such order preventing or suspending the use of the Final
Prospectus or of any notification suspending any such qualification and,
if issued, to use promptly their best efforts to obtain withdrawal
thereof as soon as possible.
(b) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Underwriters
shall reasonably request and to continue such qualification in effect so
long as reasonably required in connection with the distribution of the
Securities and to 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 Securities for investment under
the laws of such jurisdictions as such Underwriter may designate;
provided that the Issuer or the Guarantor shall not be required to
register or qualify as a foreign corporation or take any action which
would subject it to general service of process in any jurisdiction where
it is not now so subject.
(c) To furnish the Underwriters and counsel to the Underwriters, at
the expense of the Issuer, a signed or conformed copy of the Registration
Statement (as originally filed) and each amendment thereto which shall
become effective on or prior to the Closing Date and, in each case
including exhibits and documents incorporated by reference therein and,
during the period mentioned in paragraph (d) below, to furnish each
Underwriter as many copies of the preliminary prospectus and the Final
Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as such Underwriter may
reasonably request.
(d) If at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event shall occur
as a result of which the Final Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances when such Final Prospectus is
delivered to a purchaser, not misleading, or, if in the opinion of the
Underwriters or the Issuer or the Guarantor, it is necessary at any time
to amend or supplement the Final Prospectus to comply with law, the
Issuer or the Guarantor will immediately notify the Underwriters by
telephone (with confirmation in writing). If the Issuer or the Guarantor
shall decide to amend or supplement the Registration Statement or the
Final Prospectus, as then amended or supplemented, it shall so advise
each Underwriter promptly by telephone (with confirmation in writing)
and, at its expense, shall prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement
or the Final Prospectus, as then amended or supplemented, that will
correct such statement or omission or effect such compliance and will
supply such amended or supplemented Final Prospectus to the Underwriters
in such quantities as they may reasonably request.
(e) To furnish to the Underwriters during the term of this Agreement
such relevant documents and certificates of officers of the Issuer and
the Guarantor relating to the business, operations and affairs of the
Issuer and the Guarantor, the Registration Statement, the Basic
Prospectus, the Final Prospectus, any amendments or supplements thereto,
the Indenture, the Guarantees, the Securities, this Agreement, and the
performance by the Issuer of its obligations hereunder or thereunder as
the Underwriters may from time to time reasonably request in order for
such Underwriters to satisfy their due diligence obligation under the
Securities Act and shall notify the Underwriters promptly in writing of
any downgrading, or on its receipt of any notice of (i) any intended or
potential downgrading or (ii) any review or possible change that does not
indicate a stable rating or improvement in the rating accorded to any of
the securities of, or guaranteed by, the Issuer or the Guarantor by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act.
(f) To make generally available to its security holders and to the
Underwriters as soon as practicable earning statements which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule
158 of the Commission promulgated thereunder covering periods of at least
twelve months beginning in each case with the first semi-annual period,
or first fiscal quarter if the Guarantor starts reporting quarterly, of
the Guarantor occurring after the "effective date" (as defined in Rule
158) of the Registration Statement with respect to each sale of
Securities.
(g) The Issuer confirms that it has made or caused to be made on its
behalf an application for the Securities to be listed on the Luxembourg
Stock Exchange (the "Exchange"). The Issuer will use its commercially
reasonable best efforts to promptly obtain such listing and for such
purpose the Issuer agrees to deliver to the Exchange copies of the Basic
Prospectus and Prospectus Supplement relating to the Securities and such
other documents, information and undertakings as may be reasonably
required for the purpose of obtaining and maintaining such listing. The
Issuer shall use its commercially reasonable best efforts to maintain the
listing of the Securities on the Exchange for so long as any Securities
are outstanding, unless otherwise agreed to by _________ as
representative of the Underwriters.
(h) Until the business day following the Closing Date, the Issuer
and the Guarantor will not, without the consent of the Underwriters,
offer, sell or contract to sell, or announce the offering of, any debt
securities or warrants to purchase debt securities covered by the
Registration Statement or any other registration statement filed by the
Issuer and the Guarantor under the Securities Act.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Issuer and the Guarantor contained herein as of the date hereof (including the
filing of any document incorporated by reference therein), and as of the
Closing Date, to the accuracy of the statements of the Issuer and the
Guarantor made in any certificates delivered to the Underwriters pursuant to
the provisions hereof, to the performance by the Issuer and the Guarantor of
their obligations hereunder and to the following additional conditions:
(a) (i) the Final Prospectus as amended or supplemented with respect
to such Securities shall have been filed with the Commission pursuant to
Rule 424(b) under the Securities Act within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission
shall have been complied with to the reasonable satisfaction of the
Underwriters;
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of (A) any intended or potential downgrading or
(B) any review or possible change that does not indicate a stable rating
or an improvement, in the rating accorded any securities of or guaranteed
by the Issuer or the Guarantor by any "nationally recognized statistical
rating organization", as this term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act;
(iii) there shall not have been any material adverse change or any
development which could reasonably be expected to involve a prospective
material adverse change, in or affecting the general affairs, business,
management, financial position, stockholders' equity or results of
operations of either (i) the Issuer and its subsidiaries, taken as a
whole or (ii) the Guarantor and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Final Prospectus, the
effect of which in the judgment of the Underwriters (after consultation
with the Issuer and the Guarantor) makes it impracticable or inadvisable
to market the Securities on the terms and in the manner contemplated in
the Final Prospectus, as so amended or supplemented; and
(iv) (A) trading generally shall not have been suspended or
materially limited on or by, as the case may be, any of the New York
Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange, the Chicago Board of Trade, or the Frankfurt Stock
Exchange, (B) trading of any securities of or guaranteed by the Issuer or
the Guarantor shall not have been suspended on any exchange or in any
over-the-counter market, (C) a general moratorium on commercial banking
activities in New York or Germany shall not have been declared by either
United States Federal or New York State authorities or authorities of
Germany, respectively, or (D) there shall not 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 Underwriters, is material
and adverse and which in the judgment of the Underwriters (after
consultation with the Issuer and the Guarantor) makes it impracticable to
market the Securities on the terms and in the manner contemplated in the
Final Prospectus.
(b) U.S. counsel for the Guarantor (which may be an employee of the
Guarantor or its affiliates) shall have furnished to the Underwriters a
written opinion, dated the Closing Date, to the effect that:
(i) assuming due authorization, execution and delivery by the
Guarantor in accordance with applicable law and assuming that the
Indenture is a legal, valid and binding agreement of the parties thereto
(other than the Guarantor), the Indenture constitutes a valid and binding
agreement of the Guarantor enforceable against the Guarantor in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors' rights
and to general principles of equity and the Indenture has been duly
qualified under the Trust Indenture Act;
(ii) assuming that the Guarantees have been duly authorized,
executed, issued and delivered by the Guarantor according to applicable
German law, the Guarantees will constitute valid and binding obligations
of the Guarantor, enforceable against the Guarantor in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors rights and to general
principles of equity; and the Indenture and the Guarantees conform in all
material respects to the description thereof in the Final Prospectus, as
amended or supplemented;
(iii) each Material Subsidiary of the Guarantor organized in the
United States has been duly organized and is validly existing in good
standing under its jurisdiction of incorporation, with corporate power
and authority to own its property and conduct its business as described
in the Final Prospectus;
(iv) no consent, approval, authorization, order, or decree of any
court or governmental agency or body (including any further action by the
Commission) is required for the consummation by the Guarantor of the
transactions contemplated by this Agreement, or in connection with the
sale of the Securities, including the Guarantees, hereunder except such
as have been obtained or rendered, as the case may be, or as may be
required under state securities laws.
(v) the choice of New York law as the law governing this Agreement,
the Indenture, the Guarantees, and the Securities is valid under New York
law;
(vi) the statements in the Final Prospectus under "Description of
Notes and Guarantees" and "Description of Debt Securities and Guarantees"
related to the Guarantor or the Guarantees, insofar as such statements
constitute a summary of the U.S. legal matters, documents or proceedings
referred to therein, fairly summarize in all material respects the
information required to be shown with respect to such U.S. legal matters,
documents or proceedings; and
(vii) Under the laws of the State of New York, the Guarantor has
validly and irrevocably submitted to the jurisdiction of any federal
court located in The City of New York, has validly and irrevocably waived
any objection to the venue of a proceeding in any such court, and has
validly appointed CT Corporation System as its authorized agent for the
purpose described in Section 12 hereof; and service of process effected
in the manner set forth in Section 12 hereof will be effective under
New York law to confer valid personal jurisdiction over the Guarantor.
Such counsel shall also state that, although such counsel has not
verified, and assumes no responsibility for, the factual accuracy or the
completeness of the Registration Statement, the Final Prospectus or any
amendment thereof or supplement thereto, such counsel believes that (except
for the financial statements and other financial and statistical data included
or incorporated by reference therein, as to which such counsel need express no
belief) each part of the Registration Statement (including the documents
incorporated by reference therein) filed with the Commission pursuant to the
Securities Act relating to the Securities, when such part became effective did
not and, as of the date such opinion is delivered, does not, contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and further stating that such counsel believes that (except for
the financial statements and other financial and statistical data included or
incorporated by reference therein as to which such counsel need express no
belief) the Final Prospectus, as amended or supplemented, if applicable, as of
the date such opinion is delivered does not contain 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.
In rendering such opinion, such counsel may state that such opinion
is limited to the laws of the State of Michigan, and the General Corporation
law of the State of Delaware and the Federal laws of the United States and
that such counsel is expressing no opinion with respect to the laws of any
other jurisdiction. Such counsel may also state that such counsel has relied
on the opinion of ▇▇▇▇▇ & Wood LLP as to certain matters of New York law, and
as to certain other matters on information and certificates provided by public
officials, officers of the Guarantor and other sources believed by such
counsel to be responsible and that the signatures on all documents examined by
such counsel are genuine, assumptions which they have not independently
verified. Such counsel may also include in such opinion such other customary
qualifications and assumptions as are normally included in opinions of this
kind.
(c) DCNAH shall have furnished to the Underwriters the opinion of
in-house counsel for DCNAH, dated the Closing Date, to the effect that:
(i) DCNAH has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties
and conduct its business as described in the Final Prospectus;
(ii) this Agreement has been duly authorized, executed and delivered
by DCNAH;
(iii) no consent, approval, authorization, order, or decree of any
court or governmental agency or body (including any further action by the
Commission) is required for the consummation by DCNAH of the transactions
contemplated by this Agreement or in connection with the sale of the
Securities hereunder, except such as have been obtained or rendered, as
the case may be, or as may be required under state securities laws;
(iv) the Indenture has been duly authorized, executed and delivered
by DCNAH and, assuming due authorization, execution and delivery by the
other parties thereto, constitutes a valid and binding agreement of
DCNAH, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general principles of
equity;
(v) the Debt Securities to be issued by DCNAH have been duly
authorized and, when executed and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by any purchaser of
the Securities sold through the Underwriters, will constitute valid and
binding obligations of DCNAH enforceable in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity;
(vi) the issue and sale of the Debt Securities to be issued by DCNAH
and the performance by DCNAH of all of its obligations under the
Securities, the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated by DCNAH will not, to the
knowledge of such counsel (based solely on certificates of officers of
DCNAH, and without independent investigation), conflict with or result in
a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel (based solely on
certificates of officers of DCNAH, and without independent investigation)
to which DCNAH is a party or by which it is bound or to which any of the
property or assets of DCNAH is subject, nor will any such action result
in any violation of the provisions of the Charter Documents of DCNAH or
any applicable law or any statute or any order, rule or regulation of any
court or governmental agency having jurisdiction over DCNAH or any of its
properties;
(vii) the Debt Securities will conform in all material respects to
the description thereof in the Final Prospectus, as amended or
supplemented;
(viii) the statements in the Final Prospectus under "Description of
Notes and Guarantees" and "Description of Debt Securities and Guarantees"
and in the Registration Statement in Item 15, insofar as such statements
constitute a summary of the U.S. legal matters, documents or proceedings
referred to therein, fairly summarize in all material respects the
information required to be shown with respect to such U.S. legal matters,
documents or proceedings; and
(ix) DCNAH is not an "investment company" as defined in the
Investment Company Act and the offer and sale of the Securities by DCNAH
will not subject DCNAH to registration under or result in a violation of
the Investment Company Act.
Such counsel shall also state that, although such counsel has not
verified, and assumes no responsibility for, the factual accuracy or the
completeness of the Registration Statement, the Final Prospectus or any
amendment thereof or supplement thereto, such counsel believes that (except
for the financial statements and other financial and statistical data included
or incorporated by reference therein as to which such counsel need express no
belief) each part of the Registration Statement (including the documents
incorporated by reference therein) filed with the Commission pursuant to the
Securities Act relating to the Securities, when such part became effective did
not and, as of the date such opinion is delivered, does not, contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and further stating that such counsel believes that (except for
the financial statements and other financial data included or incorporated by
reference therein as to which such counsel need express no belief) the Final
Prospectus, as amended or supplemented, if applicable, as of the date such
opinion is delivered does not contain 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.
In rendering such opinion, such counsel may state that such opinion is
limited to the laws of the State of Michigan, and the General Corporation
law of the State of Delaware and the Federal laws of the United States and
that such counsel is expressing no opinion with respect to the laws of any
other jurisdiction. Such counsel may also state that such counsel has relied
on the opinion of ▇▇▇▇▇ & Wood LLP as to certain matters of New York law, and
as to certain other matters on information and certificates provided by public
officials, officers of DCNAH and the Guarantor and other sources believed by
such counsel to be responsible and that the signatures on all documents
examined by such counsel are genuine, assumptions which they have not
independently verified. Such counsel may also include in such opinion such
other customary qualifications and assumptions as are normally included in
opinions of this kind.
(d) The Guarantor shall have furnished to the Underwriters the
opinion of counsel for the Guarantor, dated the Closing Date, to the
effect that:
(i) the Guarantor is a stock corporation duly registered with the
Handelsregister in Stuttgart and is validly existing under the laws of
Germany, with power and authority (corporate and other) under such laws
to own its properties and conduct its business as described in the Final
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing, to the extent the
concepts of qualification and good standing exist under applicable law,
under the laws of each jurisdiction in which it owns or leases property,
or conducts any business so as to require such qualification, other than
where the failure to be so qualified or be in good standing would not
have a material adverse effect on the Guarantor and its subsidiaries
taken as a whole;
(ii) each Material Subsidiary organized in Germany is duly
registered with the Handelsregister at its respective seat and is validly
existing under the laws of Germany; and such Material Subsidiaries have
the power and authority (corporate and other) under such laws to own its
properties and conduct its business as described in the Final Prospectus;
and none of the Material Subsidiaries organized under German law owns or
leases property, or conducts any business, in any foreign jurisdiction
that would require such Material Subsidiary to be qualified as a foreign
corporation or other entity in such jurisdiction where it has not so
qualified, other than where the failure to be so qualified would not have
a material adverse effect on the Guarantor and its subsidiaries, taken as
a whole;
(iii) all of the outstanding shares of capital stock or other
ownership interests of each Material Subsidiary organized under the laws
of Germany have been validly issued and are fully paid and nonassessable;
no holder thereof is subject to personal liability solely by reason of
being such a holder; the existing stockholders of each such Material
Subsidiary which is organized as an Aktiengesellschaft have a
preferential right pursuant to the German Aktiengesetz to subscribe for
issues by such Material Subsidiary of shares, debt instruments
convertible into shares and participating debt instruments convertible
into shares and participating debt instruments in proportion to the
number of shares held by such stockholder in the existing capital of such
Material Subsidiary;
(iv) other than as set forth or contemplated in the Registration
Statement, there is no pending, or to the knowledge of such counsel,
threatened action or proceeding against the Issuer or the Guarantor or
any of its Material Subsidiaries before or by any domestic German or
foreign governmental or administrative entity or court which are required
to be described in the Registration Statement or the Final Prospectus and
are not so described and which could individually or in the aggregate
have a material adverse effect on the condition (financial or otherwise),
earnings, business or operations of the Issuer and its subsidiaries taken
as a whole, or the Guarantor and its subsidiaries taken as a whole; and
such counsel does not know 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 Final Prospectus which are not filed or described as required;
(v) this Agreement has been duly authorized, executed and delivered
by the Guarantor;
(vi) the Guarantees have been duly authorized by the Guarantor and,
when executed, issued and delivered by the Guarantor in accordance with
the terms of the Indenture will be duly executed, issued and delivered;
(vii) the Indenture has been duly authorized, executed and delivered
by the Guarantor;
(viii) the Guarantor is not in violation of or in default under its
Charter Documents; the issue and sale of the Securities and the
performance by the Guarantor of all of its obligations under the
Securities, including the Guarantees, the Indenture and this Agreement
and the consummation of the transactions herein and therein contemplated
will not, to the knowledge of such counsel, conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel to which the
Guarantor is a party or by which it is bound or to which any of its
property or assets is subject, except where such breach would not have a
material adverse effect on the financial condition or results of
operations of the Guarantor and its subsidiaries taken as a whole, nor
will any such action result in any violation of the provisions of the
Charter Documents of the Guarantor or any applicable law or any statute
or any order, rule or regulation of any court or governmental agency or
body of the Federal Republic of Germany;
(ix) no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
Germany is required for the issuance of the Guarantees by the Guarantor
or the consummation by the Guarantor of the other transactions
contemplated by this Agreement, the Indenture, or the Guarantees except
such consents, approvals, authorizations, registrations or qualifications
as have been obtained or rendered as the case may be;
(x) the statements in the Final Prospectus under the caption
"Enforceability of Civil Liabilities" to the extent that such statements
constitute matters of German law or legal conclusions, are accurate in
all material respects;
(xi) the choice of New York law as the law governing this Agreement,
the Indenture and the Securities, including the Guarantees, is valid
under German law, except to the extent that (A) any of the terms of such
agreements or any of the provisions of New York law applicable to such
agreements are irreconcilable with important principles of German law,
(B) there are mandatory provisions of German law which must be applied to
the transactions covered by agreements irrespective of the law which
governs such agreements or (C) all elements of the transactions covered
by such agreements other than choice of law, are connected with only one
country at the time of the choice of law and there are mandatory
provisions of the law of such country applicable to such transactions.
German courts will always apply German procedural rules; and
(xii) the submission by the Guarantor to the jurisdiction of any
United States federal or New York State court sitting in the County of
New York and the appointment of CT Corporation System by the Guarantor as
its authorized agent for the purposes and to the extent described in
Section 12 of this Agreement are effective and binding on the Guarantor.
The Guarantor is subject to general personal jurisdiction in the
Amtsgericht Stuttgart and the Landgericht Stuttgart, Stuttgart, Germany.
In rendering such opinions, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Issuer, the Guarantor and the Material
Subsidiaries and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence of good standing of the Issuer, the Guarantor and the Material
Subsidiaries. Such counsel may also include in its opinions such other
customary qualifications and assumptions as are normally included in
opinions of this kind.
(e) The Underwriters shall have received from Brown & Wood LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, (A) with respect to the validity of the Indenture and the
Securities, and other related matters as the Underwriters may reasonably
request, (B) stating that the Issuer is not an "investment company" as
defined in the Investment Company Act, (C) stating that such counsel
believes that (except for the financial statements and other financial
and statistical data included or incorporated by reference therein as to
which such counsel need express no belief) each part of the Registration
Statement (including the documents incorporated by reference therein)
filed with the Commission pursuant to the Securities Act relating to the
Securities, when such part became effective did not and, as of the date
such opinion is delivered, does not, contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
(D) stating that such counsel believes that (except for the financial
statements and other financial and statistical data included or
incorporated by reference therein as to which such counsel need express
no belief) the Final Prospectus, as amended or supplemented, if
applicable, as of the date such opinion is delivered does not contain 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.
(f) The Issuer shall have furnished to the Underwriters a
certificate of such Issuer, signed by an executive officer of the Issuer,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Issuer in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Issuer has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and no proceedings for that
purpose have been instituted or, to the Issuer's knowledge, threatened;
and
(iii) except as disclosed in the Final Prospectus, since the date of
the most recent financial statements included in the Final Prospectus,
there has been no material adverse change in the condition, financial or
otherwise or in the earnings, business affairs or business prospects of
the Issuer and its Subsidiaries considered as one enterprise, whether or
not arising from transactions in the ordinary course of business.
(g) The Guarantor shall have furnished to the Underwriters a
certificate signed by officers of the Guarantor, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus and
this Agreement and that:
(i) the representations and warranties of the Guarantor in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Guarantor has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and no proceedings for that
purpose have been instituted or, to the Guarantor's knowledge,
threatened; and
(iii) except as disclosed in the Final Prospectus, since the date of
the most recent financial statements included in the Final Prospectus,
there has been no material adverse change in the condition, financial or
otherwise or in the earnings, business affairs or business prospects of
the Guarantor and its Subsidiaries considered as one enterprise, whether
or not arising from transactions in the ordinary course of business.
(h) At the time this Agreement is executed and at the Closing Date,
the Guarantor's auditors shall have furnished to the Underwriters a
letter or letters and a bring-down letter or letters, dated respectively
as of the date of this Agreement and as of the Closing Date, in a form
heretofore agreed upon by the Underwriters and such auditors.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (a) any increases in senior term, subordinated term and
other debt of the Issuer or the Guarantor and their respective
Subsidiaries or changes in capital stock of the Issuer or the Guarantor
or decreases in shareholders' investment of the Issuer, the Guarantor and
their respective Subsidiaries or decreases in total revenues or in total
or per share amounts of earnings before income taxes or of net earnings
of the Issuer, the Guarantor and their respective Subsidiaries or (b) any
change, or any development involving a prospective change, in or
affecting the business or properties of the Issuer, the Guarantor and
their respective consolidated Subsidiaries considered as one enterprise
and the effect of which, in any case referred to in clause (a) or (b) of
this paragraph (i), is, in the reasonable judgment of the Underwriters,
so material and adverse as to make it impractical or inadvisable to
proceed with the public offering or the delivery of the Securities as
contemplated by the Registration Statement and the Final Prospectus.
(j) Prior to the Closing Date, the Issuer and the Guarantor shall
have furnished to the Underwriters such further information, certificates
and documents as the Underwriters may reasonably request.
(k) The Issuer and the Guarantor shall have accepted Delayed
Delivery Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the Issuer and the
Guarantor.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be cancelled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Issuer and the
Guarantor in writing or by telephone or telegraph confirmed in writing.
7. Payment of Expenses. The Issuer and the Guarantor jointly and
severally, will pay all expenses incident to the performance of their
obligations under this Agreement, including (i) the printing and filing of the
Registration Statement and of each amendment thereto, (ii) the printing or
reproduction of this Agreement and the Indenture, (iii) the printing or
reproduction, preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, (iv) the fees and disbursements of the
Issuer's and the Guarantor's counsel and accountants, (v) the qualification of
the Securities under state securities laws, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and
of each amendment thereto, of each preliminary prospectus, and of the Final
Prospectus and any amendments or supplements thereto, (vii) the printing and
delivery to the Underwriters of copies of any Blue Sky Survey and any Legal
Investment Survey, (viii) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee in connection with the
Indenture, (ix) any fees payable in connection with the rating of the
Securities, (x) the fees and expenses, if any, incurred in connection with the
listing of the securities on the New York Stock Exchange or any other exchange
and (xi) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review,
if any, by the National Association of Securities Dealers, Inc. (the "NASD")
of the terms of the sale of the Securities.
If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 6 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Issuer or the Guarantor to perform any agreement
herein or comply with any provision hereof other than by reason of a default
by any of the Underwriters, the Issuer and the Guarantor will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Issuer and the Guarantor,
jointly and severally agree to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities, joint
and several (including without limitation the reasonable legal fees and other
expenses as incurred in connection with any suit, action or proceeding or any
claim asserted), caused by any untrue statement or alleged untrue statement of
material fact contained or incorporated by reference in the Registration
Statement or any amendment thereof, or in the Basic Prospectus, or the Final
Prospectus (as amended or supplemented if the Issuer or the Guarantor shall
have furnished any amendments or supplements thereto) or any Preliminary Final
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, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them,
as such expenses are incurred, in connection with investigating or defending
any such loss, claim, damage, liability or action, except insofar as 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 relating to any Underwriter furnished to the
Issuer in writing by such Underwriter expressly for use therein; provided,
however, that this indemnity shall not apply to any loss, claim, damage,
liability or expense (A) to the extent arising out of or based upon any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Issuer or the
Guarantor by or on behalf of any Underwriter through the Underwriters
specifically for use in connection with the preparation thereof; or (B) to the
extent arising out of any untrue statement or omission or alleged untrue
statement or omission in the Final Prospectus if such untrue statement or
alleged untrue statement or omission or alleged omission is corrected in all
material respects in an amendment or supplement to the Final Prospectus and
if, having previously been furnished by or on behalf of the Issuer or the
Guarantor with copies of the Final Prospectus, as so amended or supplemented,
such Underwriter thereafter failed to deliver such Final Prospectus, as so
amended or supplemented to the extent required by applicable law, prior to or
concurrently with the sale of Securities to the person asserting such loss,
claim, damage, liability or expense who purchased such Securities from such
Underwriter; or (C) as to which such Underwriter may be required to indemnify
the Issuer or the Guarantor pursuant to the provisions of subsection (b) of
this Section 8.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Issuer and the Guarantor, their directors, their
officers who sign the Registration Statement and each person who controls
the Issuer or the Guarantor within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Issuer and the Guarantor to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Issuer and the Guarantor in writing by such
Underwriter expressly for use in the Registration Statement, the Basic
Prospectus, the Final Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
(c) 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 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. 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 any local
counsel) 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 the Underwriters shall be
designated in writing by such Underwriters or, if such Underwriters are
not an Indemnified Party by the Underwriters that are Indemnified Parties
and any such separate firm for the Issuer and the Guarantor, their
directors, their officers who sign the Registration Statement and such
control persons of the Issuer and the Guarantor shall be designated in
writing by the Guarantor. The Indemnifying Person shall not be liable for
any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person, 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.
(d) If the indemnification provided for in paragraphs (a) or (b) of
this Section 8 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to herein
in connection with any offering of Underwriter's Securities, 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 Issuer and the Guarantor on
the one hand and each Underwriter on the other from the offering of the
Securities to which such losses, claims, damages or liabilities relates
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 Issuer and the Guarantor on the one hand and each
Underwriter 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 Issuer and the Guarantor on the one hand and each
Underwriter on the other in connection with the offering of such
Securities shall be deemed to be in the same respective proportion as the
net proceeds from the offering of such Securities (before deducting
expenses) received by the Issuer and the total discounts and commissions
received by such Underwriter in respect thereof bear to the aggregate
offering price of such Securities. The relative fault of the Issuer and
the Guarantor on the one hand and of each Underwriter on the other shall
be determined by reference to, among other things, whether the untrue or
alleged statement of a material fact or the omission or alleged untrue
statement of a material fact relates to information supplied by the
Issuer and the Guarantor on the one hand or by such Underwriter on the
other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Issuer, the Guarantor and each Underwriter agree that it would
not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if all 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 above in this subsection (d). The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to above in this Section 8 shall be deemed to
include, subject to the limitations set forth above, any reasonable legal
or other expenses 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 Underwriter be
required to contribute any amount in excess of the amount by which the
total price at which the Securities to which the loss relates sold
through it as Underwriter or 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 Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person who controls an Underwriter
within the meaning of the Securities Act shall have the same rights to
contribution as such Underwriter, and each person who controls either
Issuer or the Guarantor within the meaning of either the Securities Act
or the Exchange Act, each officer of the Issuer and the Guarantor who
shall have signed the Registration Statement and each manager of the
Issuer and the Guarantor shall have the same rights to contribution as
the Issuer and the Guarantor. The obligation of each Underwriter to
contribute pursuant to this subsection (d) is several (in the proportion
that the principal amount of the Securities set opposite their respective
names in Schedule II) and is not joint:
(e) 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.
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
the remaining Underwriters) the Securities that the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities that the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Issuer and the Guarantor. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Underwriters shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Issuer or the Guarantor and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters (upon prior consultation with the
Issuer and the Guarantor, if practicable), by notice given to the Issuer and
the Guarantor prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Issuer's or the Guarantor's securities shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange,
(ii) a banking moratorium shall have been declared either by Federal or New
York State authorities or, (iii) or there shall have occurred any material
adverse change in the financial markets or any outbreak or material escalation
of hostilities or other calamity or crisis the effect of which on the
financial markets is such as to make it, in the judgment of the Underwriters,
impracticable to market the Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Issuer, the Guarantor or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Issuer, the Guarantor or any of the officers, managers or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Consent to Jurisdiction. (a) The Guarantor irrevocably consents
and agrees, for the benefit of the Underwriters and the purchasers of the
Securities, that any legal action, suit or proceeding against it with respect
to its obligations, liabilities or any other matter arising out of or in
connection with this Agreement may be brought in the courts of the State of
New York or the courts of the United States of America located in The City of
New York and hereby irrevocably consents and submits to the non-exclusive
jurisdiction of each such court in personam, generally and unconditionally
with respect to each action, suit or proceeding for itself and in respect of
its properties, assets and revenues.
(b) The Guarantor hereby irrevocably designates, appoints, and
empowers CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ as its
designee, appointee and agent to receive, accept and acknowledge for and
on its behalf, and its properties, assets and revenues, service of any
and all legal process, summons, notices and documents which may be served
in any such action, suit or proceeding brought in any court which may be
made on such designee, appointee and agent in accordance with legal
procedures prescribed for such courts. If for any reason such designee,
appointee and agent shall cease to be available to act as such, the
Guarantor agrees to designate a new designee, appointee and agent in The
City of New York on the terms and for the purposes of this Section 12
(whether or not the appointment of such agent shall for any reason prove
to be ineffective or such agent shall accept or acknowledge such
service). The Guarantor hereby further irrevocably consents to the
service of any and all legal process, summons, notices and documents
which may be served in any such action, suit or proceeding by the mailing
thereof by registered or certified mail, first class, postage prepaid, to
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. The Guarantor agrees that the failure
of any such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such
service of any judgment rendered in any action or proceeding based
thereon. Nothing herein shall in any way be deemed to limit the ability
of the Underwriters or the purchasers of the Securities to serve any such
legal process, summons, notices and documents in any other manner
permitted by applicable law or to obtain jurisdiction over the Guarantor
or bring actions, suits or proceedings against the Guarantor in any
jurisdictions, and in any matter, as may be permitted by applicable law.
The Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions,
suits or proceedings arising out of or in connection with this Agreement
brought in the United States Federal courts located in The City of New
York or the courts of the State of New York and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
(c) The provisions of this Section 12 shall survive each delivery of
and payment for any of the Securities.
13. Judgment Currency. The Issuer and the Guarantor, jointly and
severally, agree to indemnify each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, and each Underwriter severally agrees
to indemnify the Issuer and the Guarantor and each person, if any, who
controls the Issuer and the Guarantor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any loss incurred,
as incurred, as a result of any judgment being given in connection with this
Agreement or the Final Prospectus for which indemnification is provided by
such person pursuant to Section 8 of this Agreement and any such judgment or
order being paid in a currency (the "Judgment Currency") other than U.S.
dollars as a result of any variation as between (i) the spot rate of exchange
in New York at which the Judgment Currency would have been convertible to U.S.
dollars as of the date such judgment or order is entered, and (ii) the spot
rate of exchange at which the indemnified party is first able to purchase U.S.
dollars with the amount of the Judgment Currency actually received by the
indemnified party. If, alternatively, the indemnified party receives a profit
as a result of such currency conversion, it will return any such profits to
the indemnifying party (after taking into account any taxes or other costs
arising in connection with such conversion and repayment). The foregoing
indemnity shall constitute a separate and independent, several and not joint,
obligation of the Issuer and the Guarantor and the Underwriters and shall
continue in full force and effect notwithstanding any such judgment or order
as aforesaid. The term "spot rate of exchange" shall include any premiums and
costs of exchange payable in connection with the purchase of, or conversion
into, the relevant currency.
14. Foreign Taxes. All payments by the Issuer and the Guarantor to each
of the Underwriters hereunder shall be made free and clear of, and without
deduction or withholding for or on account of, any and all present and future
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereinafter imposed, levied, collected,
withheld or assessed by any tax authority in the Federal Republic of Germany
or any other jurisdiction in which the Issuer or the Guarantor has an office
from which payment is made or deemed to be made, excluding (i) any such tax
imposed by reason of such Underwriter having some connection with any such
jurisdiction other than its participation as Underwriter hereunder, and (ii)
any income or franchise tax on the overall net income of such Underwriter
imposed by the United States or by the State of New York or any political
subdivision of the United States or of the State of New York (all such
non-excluded taxes, "Foreign Taxes"). If the Issuer and the Guarantor are
prevented by operation of law or otherwise from paying, causing to be paid or
remitting that portion of amounts payable hereunder represented by Foreign
Taxes withheld or deducted, then amounts payable under this Agreement shall,
to the extent permitted by law, be increased to such amount as is necessary to
yield and remit to each Underwriter an amount which, after deduction of all
Foreign Taxes (including all Foreign Taxes payable on such increased payments)
equals the amount that would have been payable if no Foreign Taxes applied.
15. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them as follows: in the case of
[Name], [Address], Attention: [ ], Facsimile No.: [ ]. Communications to the
Issuer and the Guarantor will be sent, in the case of: DCNAH, to the Issuer at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile No. ▇▇▇-▇▇▇-▇▇▇▇,
Attention: Assistant Treasurer and DaimlerChrysler AG, to such Guarantor at
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Facsimile No. 49-711-17-94678,
Attention: Counsel. No purchaser of any Securities from any Underwriter or
purchaser of any Contract Securities from the Issuer and the Guarantor shall
be deemed to be a successor solely by reason of such purchase.
16. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and managers and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
17. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
made and to be performed in such State.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Issuer, the Guarantor and the several Underwriters.
Very truly yours,
DAIMLERCHRYSLER AG
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
DAIMLERCHRYSLER NORTH AMERICA
HOLDING CORPORATION
By:__________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
[NAME(S) of LEAD UNDERWRITERS]
BY: [ ]
For itself and the other Underwriters
named in Schedule II to the foregoing
Agreement.
By: ----------------------------------
Name:
Title:
SCHEDULE I
Issuer: DaimlerChrysler North America Holding Corporation
Underwriting Agreement dated [ ]
Titles: (a) ___% Notes due ___, 2004
(b) ___% Notes due ___, 2009
(c) Floating Rate Notes due ___, 2002
(collectively, the "Notes")
Aggregate principal amount: (a) $_____
(b) $_____
(c) $_____
Denominations: In denominations of $1,000 and integral
multiples thereof.
Currency of payment: U.S. dollars.
Interest rate or formula: (a) $_____
(b) $_____
(c) $_____
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions: None, except relating to tax matters, as
further detailed in the Securities.
Sinking fund requirements: None.
Listing: Luxembourg Stock Exchange (the
"Exchange").
Rating requirements: ▇▇▇▇▇'▇ Investors Service Inc.: A-1
Standard & Poor's Ratings Services,
a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.: A+-.
Fixed or Variable Price Offering: Fixed Price Offering.
Public offering price: ___% of the principal amount, plus
accrued interest, if any, from _____,
1999.
Purchase price: ___% of the principal amount, plus
accrued interest, if any, from _____,
1999.
Form: Except as otherwise provided in the
prospectus relating to the Notes, the
Notes will be issued in book-entry form
registered in the name of Cede & Co., as
nominee for The Depository Trust
Company.
Closing date and location:
Other terms and conditions: The Issuer will pay certain additional
amounts if certain taxes are imposed.
SCHEDULE II
Principal Amount
of Securities
Underwriters to be Purchased
[ ]...........................................[ ]
[ ]...........................................[ ]
[ ]...........................................[ ]
Total........................................................$[ ]
SCHEDULE III
DELAYED DELIVERY CONTRACT FOR DAIMLERCHRYSLER NORTH AMERICA
HOLDING CORPORATION
[Date]
[Name/address
of Lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from DaimlerChrysler North
America Holding Corporation ("DCNAH"), and DCNAH agrees to sell to the
undersigned, on , 19 (the "Delivery Date"), aggregate principal amount of
DCNAH's (the "Securities"), to be issued under an indenture dated as of ,
between, among other parties, DCNAH and , as trustee, as supplemented to the
date hereof. The Securities are offered by a Prospectus dated , 19 , and
related Prospectus Supplement dated , 19 , receipt of a copy of which is
hereby acknowledged. The Securities are offered at a purchase price of % of
the principal amount thereof, plus accrued interest or amortization of
original issue discount, if any, thereon from , 19 , to the date of payment
and delivery, and on the further terms and conditions set forth in this
contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 AM, New York City time, on the Delivery Date to or
upon the order of DCNAH by certified or official bank check or checks drawn on
or by a New York Clearing House bank and payable in next-day funds or, if such
funds are not available, in any other method for value on the next succeeding
business day, at your office or at such other place as shall be agreed between
DCNAH and the undersigned, upon delivery to the undersigned of the Securities
in definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to DCNAH not less than five full business
days prior to the Delivery Date. If no request is received, the Securities
will be registered in the name of the undersigned and issued in a denomination
equal to the aggregate principal amount of Securities to be purchased by the
undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of DCNAH to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited under the laws of the
jurisdiction to which the undersigned is subject, and (2) DCNAH, on or before
the Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of Securities as is to be sold to them
pursuant to the Underwriting Agreement referred to in the Prospectus
Supplement mentioned above. Promptly after completion of such sale to the
Underwriters, DCNAH will mail or deliver to the undersigned at its address set
forth below notice to such effect, accompanied by a copy of the opinion of
counsel for DCNAH delivered to the Underwriters in connection therewith. The
obligation of the undersigned to take delivery of and make payment for the
Securities, and the obligation of DCNAH to cause the Securities to be sold and
delivered, shall not be affected by the failure of any purchaser to take
delivery of and make payment for the Securities pursuant to other contracts
similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in DCNAH's sole discretion and, without limiting the foregoing,
need not be on a first come, first served basis. If this contract is
acceptable to DCNAH, it is required that DCNAH sign the form of acceptance
below and mail or deliver one of the counterparts hereof to the undersigned at
its address set forth below. This will become a binding contract between DCNAH
and the undersigned, as of the date first above written, when such counterpart
is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
------------------------------
(Name of Purchaser)
By:____________________________
(Signature and Title of Officer)
-----------------------------
(Address)
Accepted:
DaimlerChrysler North America Holding Corporation
By:______________________________
(Authorized Signature)
