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
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 "Seller"), 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 Seller 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 Seller. 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 Seller, 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 Seller, DaimlerChrysler Retail
Receivables LLC, a Michigan limited liability company (the "Company"), and
[_________________], as owner trustee (the "Owner Trustee").]
The Seller acknowledges that it will have furnished to the Underwriters,
for distribution to potential investors in the Offered Notes 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 DCFS, as Seller and Servicer,
or, if not defined therein, in the Indenture or the Trust Agreement.
[Simultaneously with the issuance and sale of the Notes as contemplated
herein, the Trust will issue the Certificates referred to in the Trust
Agreement (the "Certificates") to the Company.]
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 asset backed notes and certificates,
including the Offered Notes. The Seller may have filed one or more amendments
thereto, each of which amendments has previously been furnished to you. The
Seller has filed with the Commission [(i)] prior to the effectiveness of such
registration statement, a pre-effective amendment thereto (including the form
of base prospectus and the form of prospectus supplement) [and (ii) after the
effectiveness of such registration statement, a post-effective
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amendment thereto (the "Post-Effective Amendment"), including the form of a
final base prospectus and the form of a final prospectus supplement]. The
Seller will next file with the Commission a final base prospectus and a final
prospectus supplement relating to the Offered Notes in accordance with Rules
415 and 424(b)(2) or (5). The Seller will have filed with the Commission in a
report on Form 8-K the Collateral Materials within two business days after
they were first delivered to an Underwriter.
The Seller has included in the registration statement, as amended at the
Effective Date, all information required by the Act and the rules thereunder
to be included therein. As filed, such final base prospectus and final
prospectus supplement shall include all required information with respect to
the Offered Notes 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).
For purposes of this Agreement, "Effective Time" means, with respect to
such registration statement, the date and time as of which the Post-Effective
Amendment, or the most recent subsequent 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. Such
registration statement, as amended at the Effective Time, including all
information, if any, 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.
"Prospectus" shall mean the prospectus supplement relating to the Offered
Notes 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.
"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 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 or the
Prospectus, as
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the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Base Prospectus
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 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, 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
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) 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 relating to any
Underwriter furnished in writing to the Seller by such 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 are 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 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 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
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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. Representations and Warranties of the Underwriters. Each Underwriter
represents and warrants to, and agrees with, the Seller that:
(a) It has not offered or sold, and will not offer or sell, any Offered
Notes to persons in the United Kingdom before the expiry of six months from
the Closing Date except to persons whose ordinary activities involve them in
acquiring, holding, managing, or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances that
do not constitute an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995, as amended (the
"UK Regulations").
(b) It has complied and will comply with all applicable provisions of
the UK Regulations and of the Financial Services and Markets Act 2000 (the
"FSMA") with respect to anything done by it in relation to the Offered Notes
in, from, or otherwise involving the United Kingdom.
(c) It has only communicated or caused to be communicated and it will
only communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the FSMA)
received by it in connection with the issue or sale of any Offered Notes in
circumstances in which Section 21(1) of the FSMA does not apply to the Trust
and will comply with all applicable provisions of the FSMA with respect to
anything done by it in relation to the offered securities in, from or
otherwise involving the United Kingdom.
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 Seller 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 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 ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, on ________,
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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 Seller. 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. Covenants of the Seller. The Seller covenants and agrees with each of
the Underwriters that:
(a) Prior to the termination of the offering of the Offered Notes, 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 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 will also 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 also will 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 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
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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 first sentence of paragraph (a) of this Section
6, 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
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 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, 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 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
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 Offered Notes 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 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 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, 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.
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(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 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
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.
7. 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 Offered Notes to the Underwriters,
(iv) the fees and disbursements of the Seller's counsel and accountants, (v)
the qualification of the Offered Notes under securities laws in accordance
with the provisions of Section 6(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 ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP in its role as counsel to the Trust incurred as
a result of providing the opinions required by Section 8(f) and the second
sentence of Section 8(g) hereof.
8. 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 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) The Prospectus and any supplements thereto shall have been filed
with the Commission in accordance with the Rules and Regulations and Section
6(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.
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(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 Seller, 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 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 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.
(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
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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 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, 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 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
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.
(vii) This Agreement has been duly authorized, executed and
delivered by DCFS.
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(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 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 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.
(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
11
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 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) 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 Seller 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 Seller'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 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
12
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 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 Seller's standard
operating procedures relating to the Seller's acquisition of a perfected
first priority security interest in the vehicles financed by the Seller
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
Notes have been duly taken or made. [Neither the Certificates nor
[t][T]]he Class A-1 Notes are [not] required to be registered under the
Act.
13
(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 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
Act, any required filing of the Base Prospectus, any preliminary Base
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 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
14
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 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.
(e) 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) the Trust will not be characterized as an association (or a
publicly traded partnership) taxable as a corporation for Michigan tax
purposes; and
(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 ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ 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 ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ llp, in its capacity as special counsel to the Underwriters,
dated the Closing Date, with respect to the validity of the Notes and [the
Certificates and] such other related matters as you shall require, and the
Seller shall have furnished or caused to be furnished to such counsel such
15
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 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 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 legally incorporated under the
laws of the State of [____________] and, based upon a certificate of
good standing issued by that State, is validly existing as a banking
corporation in good standing under the laws of that State][is validly
existing as a national banking association in good standing under the
laws of the United States of America], and has the requisite entity
power and authority to execute and deliver each of the Indenture 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 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 federal
[or State of [___________]] statute or regulation that in our experience
is normally applicable to transactions of the type contemplated by each
of the Indenture 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.
(iii) With respect to [__________________], the performance of its
obligations under each of the Indenture and the Administration Agreement
and the consummation of the transactions contemplated thereby will not
result in any breach or violation of its certificate of incorporation or
bylaws.
(iv) With respect to [__________________], the performance of its
obligations under each of the Indenture 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 or the Administration Agreement.
16
(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 or the Administration Agreement.
(vi) Each of the Indenture and the Administration Agreement has
been duly authorized, executed and delivered by [__________________].
(vii) Each of the Indenture 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:
(i) The Owner Trustee is [duly incorporated and validly existing
in good standing as a banking corporation under the laws of the State of
Delaware][validly existing as a national banking association in good
standing under the laws 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 to
consummate the transactions contemplated thereby.
(iii) The Owner Trustee has duly authorized, executed and
delivered the Trust Agreement, and the Trust 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, nor the consummation of the transactions
contemplated thereby, is in violation of the articles of association or
bylaws of the Owner Trustee or of any law,
17
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, 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 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 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 _______, 200___, 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 Seller 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" by each of Standard &
Poor's and Fitch and "Aaa" by ▇▇▇▇▇'▇. [The Class B Notes shall have been
rated at least ["A"] or its equivalent by each of Standard & Poor's, Fitch and
▇▇▇▇▇'▇.]
18
(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, the Certificates shall have been issued to the
Company.
(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.
9. 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 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
with written information relating to any Underwriter furnished to the Seller
by such 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 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
19
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 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 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
20
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. 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 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.
10. 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 Seller 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 Seller, except as provided in
Section 12. 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.
11. 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.
12. 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
21
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 Offered Notes. If for any
reason the purchase of the Offered Notes 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 7 and the respective
obligations of the Seller and the Underwriters pursuant to Section 9 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 8(c)),
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 Offered Notes. Nothing contained in
this Section 12 shall limit the recourse of the Seller against the
Underwriters.
13. 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
Seller, will be mailed, delivered or telegraphed, and confirmed to it at
DaimlerChrysler Financial Services Americas LLC, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 9 will be
mailed, delivered or telegraphed and confirmed to such Underwriter. Any such
notice will take effect at the time of receipt.
14. 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 9, and
no other person will have any right or obligations hereunder.
15. 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.
16. 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.
17. Applicable Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York.
22
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 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
-------------------
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
Total................................$ [_______]
===========
Class A-4 Notes
Principal Amount of
the Class A-4 Notes
-------------------
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
Total................................$ [_______]
===========
I-1
Class B Notes
Principal Amount of
the Class B Notes
-----------------
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
[________________].................................................$[________]
Total................................$ [_______]
===========
I-2
EXHIBIT A
Collateral Materials
A-1