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