Exhibit 1.2
DAIMLERCHRYSLER AUTO TRUST 200_-_
_____% ASSET BACKED CERTIFICATES
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
CERTIFICATE UNDERWRITING AGREEMENT
----------------------------------
____________, 200_
[Representative Underwriter]
as Representative of
the Several Underwriters
[Address of Representative Underwriter]
Ladies and Gentlemen:
1. Introductory. DaimlerChrysler Services North America LLC, a Michigan
limited liability company ("DCS" or the "Seller"), proposes to cause
DaimlerChrysler Auto Trust 200_-_ (the "Trust") to issue and sell
$_______________ principal amount of its _____% Asset Backed Certificates (the
"Certificates") to the several Underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as representative (the
"Representative"). The assets of the Trust will include, among other things, a
pool of motor vehicle retail installment sale contracts (the "Standard
Receivables") and the right to receive Amortizing Payments with respect to
Fixed Value Receivables (the Standard Receivables and the Amortizing Payments
with respect to the Fixed Value Receivables are referred to herein
collectively as the "Receivables") and the related collateral. The Receivables
will be serviced for the Trust by DCS (in such capacity, the "Servicer"). The
Certificates will be issued 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 Seller, as Depositor,
DaimlerChrysler Retail Receivables LLC, a Michigan limited liability company
(the "Company"), and Chase Manhattan Bank USA, National Association, as owner
trustee (the "Owner Trustee").
Simultaneously with the issuance and sale of the Certificates as
contemplated herein, the Trust will issue $_______________ principal amount of
its _____% Asset Backed Notes, Class A-1 (the "Class A-1 Notes"),
$_______________ principal amount of its Floating Rate 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 "Notes"). The Class A-2 Notes, Class A-3
Notes and Class A-4 Notes (the "Offered Notes") will be sold pursuant to an
underwriting agreement dated the date hereof (the "Note Underwriting
Agreement") between the Seller and the underwriters named in Schedule I
thereto. The Offered Notes and Certificates are sometimes referred to
collectively herein as the "Offered Securities".
The Seller acknowledges that it will have furnished to the Underwriters,
for distribution to potential investors in the Certificates prior to the date
on which the Prospectus (as defined in Section 2(a) below) is made available
to such potential investors, a term sheet in the form of Exhibit A hereto (the
"Collateral Materials").
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 DCS, as Seller and
Servicer, or, if not defined therein, in the Trust Agreement or in the
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").
2. Representations and Warranties of the Seller. The Seller represents
and warrants to, and agrees with, each Underwriter that:
(a) The Seller meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(Registration No. __________) on such Form, including a related preliminary
Base Prospectus and a preliminary prospectus supplement, for the registration
under the Act of the offering and sale of the Offered Securities. The Seller
may have filed one or more amendments thereto, each of which amendments has
previously been furnished to you. The Seller will next file with the
Commission (i) prior to the effectiveness of such registration statement, an
amendment thereto (including the form of final Base Prospectus and the form of
final prospectus supplement relating to the Offered Securities) or (ii) after
the effectiveness of such registration statement, either (A) a final Base
Prospectus and a final prospectus supplement relating to the Offered
Securities in accordance with Rules 430A and 424(b)(1) or (4) under the Act or
(B) a final Base Prospectus and a final prospectus supplement relating to the
Offered Securities in accordance with Rules 415 and 424(b)(2) or (5).
In the case of clauses (ii) (A) and (B), the Seller has included in such
registration statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Prospectus with respect to the Offered
Securities and the offering thereof. As filed, such amendment and form of
final prospectus supplement, or such final prospectus supplement, shall
include all Rule 430A Information, together with all other required
information, with respect to the Offered Notes and the Certificates and the
offering thereof and, except to the extent that the Underwriters shall agree
in writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed
at the Execution Time, shall contain only such specific additional information
and other changes (beyond that contained in the latest preliminary Base
Prospectus and preliminary prospectus supplement, if any, that have previously
been furnished to you) as the Seller has advised you, prior to the Execution
Time, will be included or made therein. If the Registration Statement contains
the undertaking specified by Regulation S-K Item 512(a), the Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
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For purposes of this Agreement, "Effective Time" means, with respect to
each such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto,
if any, was declared effective by the Commission, and "Effective Date" means
the date of the Effective Time. "Execution Time" shall mean the date and time
that this Agreement is executed and delivered by the parties hereto. The
registration statement, as amended at the Effective Time, including all
information deemed to be a part of such registration statement as of the
Effective Time pursuant to Rule 430A(b) under the Act, and including the
exhibits thereto and any material incorporated by reference therein, is
hereinafter referred to as the "Registration Statement"; provided that
references to the Effective Date or other matters relating to the Registration
Statement shall be deemed to be references to the Effective Date or such other
matters relating to the registration statement included in the definition of
Registration Statement. "Base Prospectus" shall mean any prospectus referred
to above contained in the Registration Statement at the Effective Date,
including any Preliminary Prospectus Supplement. "Preliminary Prospectus
Supplement" shall mean the preliminary prospectus supplement, if any, to the
Base Prospectus which describes the Offered Securities and the offering
thereof and is used prior to the filing of the Prospectus. "Prospectus" shall
mean the prospectus supplement relating to the Offered Securities that is
first filed pursuant to Rule 424(b) after the Execution Time, together with
the Base Prospectus, as amended at the time of such filing, or, if no filing
pursuant to Rule 424(b) is required, shall mean the prospectus supplement
relating to the Offered Securities, including the Base Prospectus, included in
the Registration Statement at the Effective Date. "Rule 430A Information"
means information with respect to the Offered Securities and the offering of
the Offered Securities permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A. "Rule 415", "Rule 424", "Rule
430A" and "Regulation S-K" refer to such rules or regulations under the Act.
Any reference herein to the Registration Statement, the Base Prospectus, a
Preliminary Prospectus Supplement or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, such
Preliminary Prospectus Supplement or the Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of the Base Prospectus,
any Preliminary Prospectus Supplement or the Prospectus, as the case may be,
deemed to be incorporated therein by reference.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the Closing Date, the
Prospectus (and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules and regulations of the Commission thereunder (the "Rules and
Regulations"); on the Effective Date, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b)
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and on the Closing Date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that the Seller makes no representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Seller by any Underwriter through you
specifically for use in connection with the preparation of the Registration
Statement or the Prospectus (or any supplement thereto). As of the Closing
Date, the Seller's representations and warranties in the Sale and Servicing
Agreement and the Trust Agreement will be true and correct.
(c) This Agreement has been duly authorized, executed and delivered by
the Seller.
(d) The Seller's assignment and delivery of the Standard Receivables and
the Fixed Value Receivables to the Trust will vest in the Trust all of the
Seller's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(e) The Trust's assignment of the Standard Receivables and the Fixed
Value 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.
(f) None of the Seller, the Company or anyone acting on behalf of the
Seller 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 Seller, the Company or the Trust under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), nor will the Seller, or the Company
act, nor has either of them authorized, nor will either of them authorize, any
person to act in such a manner.
3. Purchase, Sale, and Delivery of the Certificates. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to cause the
Trust to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust, at a purchase price of __________% of
the principal amount thereof, the respective principal amount of the
Certificates set forth opposite the name of such Underwriter in Schedule I
hereto. Delivery of and payment for the Certificates shall be made at the
office of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, on ____________, 200_ (the "Closing Date"). Delivery of the
Certificates shall be made against payment of the purchase price in
immediately available funds drawn to the order of the Seller. The Certificates
to be so delivered will be represented initially by one or more Certificates
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC"). The interests of beneficial owners of the Certificates will
be represented by book entries on the records of DTC and participating members
thereof. Definitive Certificates will be available only under limited
circumstances.
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4. Offering by Underwriters. It is understood that, after the
Registration Statement becomes effective, the Underwriters propose to offer
the Certificates for sale to the public (which may include selected dealers),
as set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with each of
the Underwriters that:
(a) The Seller will use its best efforts to cause the Registration
Statement, and any amendment thereto, if not effective at the Execution Time,
to become effective. Prior to the termination of the offering of the
Certificates, the Seller will not file any amendment of the Registration
Statement or supplement to the Prospectus unless the Seller 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, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Seller 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 Seller will advise you promptly of any proposal to amend or
supplement the Registration Statement, as filed, or the related Prospectus and
will not effect such amendment or supplement without your consent, which
consent will not unreasonably be withheld; the Seller also will advise you
promptly of any request by the Commission for any amendment of or supplement
to the Registration Statement or the Prospectus or for any additional
information; and the Seller will also advise you promptly of the effectiveness
of the Registration Statement (unless the Registration Statement has become
effective prior to Execution Time) and any amendment thereto, when the
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b) and of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or
the institution or threat of any proceeding for that purpose, and the Seller
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 Certificates and
the Offered Notes is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective rules
thereunder, the Seller promptly will notify you and will prepare and file, or
cause to be prepared and filed, with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, 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 Seller will cause the Trust to make generally available to
Certificateholders an earnings
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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 Act.
(e) The Seller 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 (including the Preliminary
Prospectus Supplement, if any), 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 Seller will arrange for the qualification of the Certificates 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 Certificates, or until such time as the Underwriters shall cease to
maintain a secondary market in the Certificates, whichever occurs first, the
Seller will deliver to you the annual statements of compliance and the annual
independent certified public accountants' 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 Certificates is outstanding, the Seller will
furnish to you (i) as soon as practicable after the end of the fiscal year all
documents required to be distributed to Certificateholders or filed with the
Commission pursuant to the Exchange Act or any order of the Commission
thereunder and (ii) from time to time, any other information concerning the
Seller filed with any government or regulatory authority that is otherwise
publicly available, as you may reasonably request.
(i) On or before the Closing Date, the Seller 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, the Seller
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
Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Seller, the Seller 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 Seller nor
any trust originated, directly or indirectly, by the Seller will offer to sell
or sell notes (other than the Notes) collateralized by, or certificates (other
than the Certificates) evidencing an ownership interest in, receivables
generated pursuant to 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.
6. Payment of Expenses. The Seller 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 Certificates to the
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Underwriters, (iv) the fees and disbursements of the Seller's counsel and
accountants, (v) the qualification of the Certificates under securities laws
in accordance with the provisions of Section 5(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 Certificates,
(viii) any fees charged by rating agencies for the rating of the Certificates,
(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 ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP in its role as counsel to the Trust
incurred as a result of providing the opinions required by Section 7(g) and
the second sentence of Section 7(h) hereof.
7. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Certificates will be subject to
the accuracy of the representations and warranties on the part of the Seller
herein, to the accuracy of the statements of officers of the Seller made
pursuant to the provisions hereof, to the performance by the Seller of its
obligations hereunder and to the following additional conditions precedent:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriters agree in writing to a later time, the
Registration Statement shall have become effective not later than (i) 6:00
P.M. New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 P.M. New York City
time on such date or (ii) 12:00 noon on the business day following the day on
which the public offering price was determined, if such determination occurred
after 3:00 P.M. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have been filed (if
required) with the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof, 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 Seller or you, shall be contemplated by the Commission or by any
authority administering any state securities or blue sky law.
(c) On or prior to the Closing Date, you shall have received a letter,
dated as of the Closing Date, of _________________, 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.
(d) 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 Seller, the Company or
DaimlerChrysler Corporation which, in the judgment of the Underwriters,
materially impairs the investment quality of the Certificates or makes it
impractical or inadvisable to market the Certificates; (ii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange
or any setting of
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minimum prices for trading on such exchange; (iii) any suspension of trading
of any securities of DaimlerChrysler AG or the Seller 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 Certificates; or (vi) a material disruption
has occurred in securities settlement or clearance services in the United
States.
(e) You shall have received an opinion of _______________, Vice President
and General Counsel of DCS 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) DCS 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 Note
Underwriting 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 Standard
Receivables and the Fixed Value Receivables.
(ii) The Company has been duly organized and is validly existing as
a limited liability company in good standing under the laws of the
State of Michigan with full power and authority to own its
properties and conduct its business as presently conducted by it,
and to enter into and perform its obligations under the Trust
Agreement and the Purchase Agreement, and had at all times, and now
has, the power, authority and legal right to acquire, own, sell and
hold the excess cash flow from the Reserve Account and the Fixed
Value Payments.
(iii) Each of DCS 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 Standard
Receivable or Fixed Value Receivable unenforceable by the Seller,
the Owner Trustee or the Indenture Trustee.
(iv) The direction by the Seller to the Owner Trustee to
authenticate the Certificates has been duly authorized by the Seller
and, when the Certificates have been duly executed, authenticated
and delivered by the Owner Trustee in accordance with the Trust
Agreement and delivered and paid for pursuant to this Agreement, 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
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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 Seller to the Indenture Trustee to
authenticate the Notes has been duly authorized by the Seller, and
when the Notes have been duly executed and delivered by the Owner
Trustee and authenticated by the Indenture Trustee in accordance
with the Indenture and delivered and paid for pursuant to the Note
Underwriting 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 DCS and are legal, valid and
binding obligations of DCS enforceable against the DCS in accordance
with their terms, except (x) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights and (y) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought.
(vii) This Agreement and the Note Underwriting Agreement have been
duly authorized, executed and delivered by the Seller.
(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 Standard Receivables and the Fixed
Value Receivables from the Seller 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 the
Note Underwriting Agreement, this Agreement, the Purchase Agreement,
the Trust Agreement, the Sale and Servicing Agreement or the
Administration Agreement by DCS, nor the execution and delivery of
the Trust Agreement and the Purchase Agreement by the Company, nor
the consummation of any transactions contemplated in the Note
Underwriting Agreement, this Agreement, the Purchase Agreement, the
Trust Agreement, the Indenture, the Administration
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Agreement or the Sale and Servicing Agreement (such agreements,
excluding the Note Underwriting Agreement and this Agreement, being,
collectively, the "Basic Documents"), nor the fulfillment of the
terms thereof by DCS, the Company or the Trust, as the case may be,
will conflict with, or result in a breach, violation or acceleration
of, or constitute a default under, any term or provision of the
articles of organization or operating agreement of the Seller or the
Company, or of any indenture or other agreement or instrument to
which the Seller 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 the Seller 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 DCS of its obligations under, or
the validity or enforceability of, the Note Underwriting Agreement,
this Agreement, the Purchase Agreement, the Trust Agreement, the
Sale and Servicing Agreement, or the Administration Agreement, or,
(4) that might materially and adversely affect the performance by
the Company of its obligations under, or the validity or
enforceability of, the Purchase Agreement or the Trust Agreement.
(xi) To the best knowledge of such counsel and except as set forth
in the Prospectus (and any supplement thereto), no default exists
and no event has occurred which, with notice, lapse of time or both,
would constitute a default in the due performance and observance of
any term, covenant or condition of any agreement to which the Seller
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 Seller
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) DCS contained in
this Agreement, the Note Underwriting Agreement, the Trust Agreement
or the Sale and Servicing Agreement are other than as stated
therein.
(xiii) The Seller is the sole owner of all right, title and interest
in, and has good and marketable title to, the Standard Receivables
and Fixed Value Receivables and the other property to be transferred
by it to the Trust. The assignment of the Standard Receivables and
Fixed Value 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
10
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 Standard Receivables
and Fixed Value Receivables to the Trust, the Seller's interest in
the Standard Receivables and Fixed Value Receivables, the security
interests in the Financed Vehicles securing the Standard Receivables
and Fixed Value 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 Standard Receivables and
Fixed Value Receivables, the security interests in the Financed
Vehicles securing the Standard Receivables and Fixed Value
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
Michigan and 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 Michigan and 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
Standard Receivables and Fixed Value Receivables, the security
interests in the Financed Vehicles securing the Receivables and the
proceeds of each of the foregoing against third parties.
(xvi) The Standard Receivables and Fixed Value Receivables are
chattel paper as defined in the UCC.
(xvii) The Sale and Servicing Agreement, the Trust Agreement, the
Indenture, the Purchase Agreement and the Administration Agreement
conform in all material respects with the descriptions thereof
contained in the Prospectus (and any supplement thereto).
(xviii) The statements in the Prospectus under the headings "Risk
Factors - Trusts May Not Have a Perfected Security Interest in
Certain Financed Vehicles" and "--Insolvency of the Seller 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 Securities", "Form of
Securities and Transfers" and "Principal Documents", insofar as such
statements constitute a summary of the Certificates, 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.
11
(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
Standard Receivables and Fixed Value 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 Seller's standard operating
procedures relating to the Seller's acquisition of a perfected first
priority security interest in the vehicles financed by the Servicer
pursuant to retail automobile and light duty truck installment sale
contracts in the ordinary course of the Seller's business. Assuming
that the Seller'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 Seller 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 Seller 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 Act and the Exchange Act prior to the sale of the
Certificates have been duly taken or made.
(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 Seller is not, and will not as a result of the offer and
sale of the Certificates as contemplated in the Prospectus (and any
supplement thereto) and this Agreement or of the Notes as
contemplated in the Prospectus (and any supplement thereto) and the
Note Underwriting 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
12
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
Act, any required filing of the Base Prospectus, any preliminary
Base Prospectus, any Preliminary Prospectus Supplement 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 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
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
or the Prospectus or any amendment or supplement thereto as of the
respective dates thereof (other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need not express any view) contains an untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein not misleading.
(xxx) The Trust has been duly formed and is validly existing as a
statutory business trust and is in good standing under the laws of
the State of Delaware, with full power and authority to execute,
deliver and perform its obligations under the Sale and Servicing
Agreement, the Indenture, the Administration Agreement, and the
Notes 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.
(f) You shall have received an opinion of ____________________, Vice
President and General Counsel of DCS 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 the statements in the
Base Prospectus under the heading "Certain Federal Income Tax Consequences -
Certain State Tax Consequences" and in the Prospectus Supplement under the
13
heading "Federal Income Tax Consequences" (to the extent relating to Michigan
tax consequences) accurately describe the material Michigan tax consequences
to holders of the Securities.
(g) You shall have received an opinion addressed to you of Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ 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 Securities.
(h) You shall have received an opinion addressed to you of Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, in its capacity as special counsel to the Underwriters,
dated the Closing Date, with respect to the validity of the Certificates and
the Notes and such other related matters as you shall require, and the Seller
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 ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, in its capacity as special ERISA
counsel to the Trust, shall also have delivered an opinion with respect to the
characterization of the transfer of the Receivables and to the effect that the
statements in the Base 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 accurately describe the material
consequences to holders of the Securities under ERISA.
(i) You shall have received an opinion addressed to you and DCS 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:
(i) The Owner Trustee is a banking corporation duly incorporated and
validly existing under the laws of the State of Delaware.
(ii) The Owner Trustee has the full corporate trust power to accept
the office of owner trustee under the Trust Agreement and to enter
into and perform its obligations under the Trust Agreement and, on
behalf of the Trust, under the Indenture, the Sale and Servicing
Agreement and the Administration Agreement.
(iii) The execution and delivery of the Trust Agreement and, on
behalf of the Trust, of the Indenture, the Sale and Servicing
Agreement, the Administration Agreement, the Certificates and the
Notes and the performance by the Owner Trustee of its obligations
under the Trust Agreement, the Indenture, the Sale and Servicing
Agreement and the Administration Agreement have been duly authorized
by all necessary corporate action of the Owner Trustee and each has
been duly executed and delivered by the Owner Trustee.
(iv) The Trust Agreement, the Sale and Servicing Agreement, the
Indenture and the Administration Agreement constitute valid and
binding obligations of the Owner Trustee enforceable against the
Owner Trustee in accordance with their
14
terms under the laws of the State of New York, the State of Delaware
and the federal law of the United States.
(v) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, of the Indenture, the Sale
and Servicing Agreement and the Administration Agreement do not
require any consent, approval or authorization of, or any
registration or filing with, any Delaware or United States federal
governmental authority.
(vi) The Certificates have been duly executed and delivered by the
Owner Trustee as owner trustee and authenticating agent. Each of the
Notes has been duly executed and delivered by the Owner Trustee, on
behalf of the Trust.
(vii) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture, the Trust Agreement or the Administration Agreement nor
the fulfillment of the terms thereof by the Owner Trustee will
conflict with, result in a breach or violation of, or constitute a
default under any law or the charter, bylaws or other organizational
documents of the Owner Trustee or the terms of any indenture or
other agreement or instrument known to such counsel to which the
Owner Trustee or any of its subsidiaries is a party or is bound, or
any judgment, order or decree known to such counsel to be applicable
to the Owner Trustee or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Owner Trustee or any of its
subsidiaries.
(viii) To the knowledge of such counsel there is no action, suit or
proceeding pending or threatened against the Owner Trustee (as owner
trustee under the Trust Agreement or in its individual capacity)
before or by any governmental authority that, if adversely decided,
would materially adversely affect the ability of the Owner Trustee
to perform its obligations under the Trust Agreement.
(ix) The execution, delivery and performance by the Owner Trustee
(as trustee under the Trust Agreement or in its individual capacity,
as the case may be) of the Sale and Servicing Agreement, the
Indenture, the Trust Agreement or the Administration Agreement will
not subject any of the property or assets of the Trust or any
portion thereof to any lien created by or arising under the Owner
Trustee that is unrelated to the transactions contemplated in such
Agreements.
(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, the principal
financial officer or the principal accounting officer of each of the Seller
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 DCS 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 DCS 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
15
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 ____________, 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, DCS, 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 Seller in the Standard
Receivables and Fixed Value Receivables and the proceeds thereof to the Trust
and the grant of the security interest by the Trust in the Standard
Receivables and Fixed Value Receivables and the proceeds thereof to the
Indenture Trustee.
(l) The Certificates shall have been rated "__" by Standard & Poor's and
Fitch and "__" by ▇▇▇▇▇'▇.
(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 Seller or any
of its affiliates.
(n) On the Closing Date, $_______________ aggregate principal amount of
the Offered Notes shall have been issued and sold.
(o) On the Closing Date, the Seller shall have purchased and fully paid
for all of the Class A-1 Notes.
The Seller will provide or cause to be provided to you such conformed
copies of such opinions, certificates, letters and documents as you reasonably
request.
8. Indemnification and Contribution. (a) The Seller 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 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 Base
Prospectus, the Collateral Materials, the Preliminary Prospectus Supplement
(if any), the Base Prospectus or the Prospectus or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein (in the case of the Collateral Materials, when read together
with the Prospectus) a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Seller 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
16
with written information furnished to the Seller by any Underwriter through
you specifically for use therein.
For all purposes contemplated hereby, the Seller and the Underwriters
each acknowledge that the Collateral Materials were prepared by the Seller.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Seller against any losses, claims, damages or liabilities to
which the Seller may become subject, under the 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 Base Prospectus, the Preliminary Prospectus
Supplement (if any), the Base Prospectus or the Prospectus or any amendment or
supplement thereto, 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 was made in reliance
upon and in conformity with written information relating to such Underwriter
furnished to the Seller by such Underwriter through you specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Seller in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability that it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by the indemnified
party of the counsel appointed by the indemnifying party, the indemnifying
party will not be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Seller on the one hand and the Underwriters on the other from the offering of
the Certificates 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
17
relative fault of the Seller 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 Seller 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 Seller 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 Seller 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 Certificates) shall be required to contribute any amount in
excess of the underwriting discount or commission applicable to the
Certificates purchased by such Underwriter hereunder. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Seller under this Section shall be in addition
to any liability that the Seller 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 Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Seller, to each officer of the
Seller who has signed the Registration Statement and to each person, if any,
who controls the Seller within the meaning of the Act.
9. Defaults of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase the Certificates hereunder on the Closing
Date and arrangements satisfactory to the Representative and the Seller for
the purchase of such Certificates 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 Seller, except as provided in
Section 11. 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.
10. 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 Seller or by a trust for which the Seller 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 Seller any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
any federal or state bankruptcy or similar law.
18
11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Seller 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 Seller 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 Seller or any of their respective representatives, officers or directors
or any controlling person, and will survive delivery of and payment for the
Certificates. If for any reason the purchase of the Certificates by the
Underwriters is not consummated, the Seller shall remain responsible for the
expenses to be paid or reimbursed by the Seller pursuant to Section 6 and the
respective obligations of the Seller and the Underwriters pursuant to Section
8 shall remain in effect. If for any reason the purchase of the Certificates
by the Underwriters is not consummated (other than because of a failure to
satisfy the conditions set forth in items (ii), (iv) and (v) of Section 7(d)),
the Seller 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 Certificates. Nothing contained in
this Section 11 shall limit the recourse of the Seller against the
Underwriters.
12. 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 [Address of Representative Underwriter]; if sent to the
Seller, will be mailed, delivered or telegraphed, and confirmed to it at
DaimlerChrysler Services North America LLC, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8 will be mailed, delivered or
telegraphed and confirmed to such Underwriter. Any such notice will take
effect at the time of receipt.
13. 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 8, and
no other person will have any right or obligations hereunder.
14. Representation. 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.
15. 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.
16. Applicable Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York.
19
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 Seller and the several
Underwriters in accordance with its terms.
Very truly yours,
DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC
By:
Name: ______________________
Title:
The foregoing Certificate Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
[Representative Underwriter]
as Representative of the Several Underwriters
By __________________________________________:
Name:
Title:
20
SCHEDULE I
Principal Amount
Certificate Underwriters of Certificates
------------------------ ----------------
[Representative Underwriter]..................................$_______________
[Underwriters]................................................$_______________
Total................................................$_______________
21