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
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
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 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-2 Notes and the
Class A-3 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"). 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 "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 Standard
Receivables and the Fixed Value Receivables will be sold to the Trust by the
Seller. The Receivables will be serviced for the Trust by DCS (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 [Indenture Trustee], as
indenture trustee "Indenture Trustee".
Simultaneously with the issuance and sale of the Notes as contemplated
herein, the Trust will issue the sum of $[_______________] and
$[_______________] 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 Chase Manhattan Bank USA, National
Association, 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 DCS, as Seller and
Servicer, or, if not defined therein, in the Indenture or in 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 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 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 Notes) or (ii) after
effectiveness of such registration statement, either (A) a final base
prospectus 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 Notes in accordance with Rules 415 and 424(b)(2) or (5). The Seller
has 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.
In the case of clauses (ii)(A) and (B) above, the Seller has included in
the 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 Notes
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 such required information, with
respect to the Offered Notes and the
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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
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. Such
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 Notes and the offering thereof and
is used prior to filing of the Prospectus. "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, or, if no filing pursuant
to Rule 424(b) is required, shall mean the prospectus supplement relating to
the Offered Notes, including the Base Prospectus, included in the Registration
Statement at the Effective Date. "Rule 430A Information" means information
with respect to the Offered Notes and the offering of the Offered Notes
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
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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) 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. Representations and Warranties of the Underwriters. Each Underwriter
represents and warrants to, and agrees with, the Seller that:
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(a) It has not offered or sold, and will not offer or sell, any Offered
Notes to persons in the United Kingdom 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 for the purposes of the Public Offers of Securities
Regulations 1995.
(b) It has complied and will comply with all applicable provisions of the
Financial Services Act of 1986 of Great Britain 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 issued or passed on and will only issue or pass on in the
United Kingdom any document in connection with the issue of the Offered Notes
to a person who is of a kind described in Article 11(3) of the Financial
Services Act of 1986 (Investment Advertisements) (Exemptions) Order 1995 or is
a person to whom the document may otherwise lawfully be issued or passed on.
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. Delivery of and payment for the Offered
Notes shall be made at the office of Sidley Austin Brown & Wood LLP, 875 Third
Avenue, New York, New York 10022, on [__________, 200__] (the "Closing Date").
Delivery of the Offered Notes shall be made against payment of the purchase
price in immediately available funds drawn to the order of the 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) 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 Offered
Notes, the Seller will not file any amendment of the
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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 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 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 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 (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.
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(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, DCS 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, DCS shall
not take any action inconsistent with the Trust's ownership of such
Receivables, other than as permitted by the Sale and Servicing Agreement.
(j) To the extent, if any, that the ratings provided with respect to the
Offered Notes by the rating agency or agencies that initially rate the Offered
Notes are conditional upon the furnishing of documents or the taking of any
other actions by the 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
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the Offered Notes, (viii) any fees charged by rating agencies for the rating
of the Notes, (ix) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc., and (x) the
fees and expenses of Sidley Austin Brown & Wood LLP in its role as counsel to
the Trust incurred as a result of providing the opinions required by Section
8(g) and the second sentence of Section 8(h) 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) 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 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.
(c) 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.
(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 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 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,
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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.
(e) You shall have received an opinion of [_________________________],
Esq., 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 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, 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
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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 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 has been duly authorized, executed and
delivered by DCS.
(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 this Agreement, the Purchase Agreement, the
Trust Agreement, the Administration Agreement, or the Sale and Servicing
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 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 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 DCS or the Company, or of any
indenture or other agreement or instrument to which DCS 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
DCS or the Company of any court, regulatory body, administrative agency
or governmental body having jurisdiction over either of them.
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(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, 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 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 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 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
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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 a 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 Certificates, 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 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 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
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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 the Class A-1
Notes are required to be registered under the Act.
(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, 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.
13
(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, 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 [_______________], Esq., 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) 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.
(g) You shall have received an opinion addressed to you of Sidley Austin
Brown & Wood 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.
(h) You shall have received an opinion addressed to you of Sidley Austin
Brown & Wood 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
14
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 Austin Brown & Wood 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 accurately describe the material consequences to holders of the
Notes under ERISA.
(i) You shall have received an opinion addressed to you and DCS of
[_______________], Esq., Vice President and Senior Counsel to the Corporate
Trust Services Division of the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel, to the effect
that:
(i) The Indenture Trustee has been duly incorporated and is validly
existing as a national banking association in good standing under the
laws of the United States of America, with full power and authority
(corporate or other) to enter into and perform its obligations under the
Indenture, the Sale and Servicing Agreement and the Administration
Agreement.
(ii) The execution and delivery of the Indenture and the
Administration Agreement and the acceptance of the Sale and Servicing
Agreement and the performance by the Indenture Trustee of its obligations
under the Indenture, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized by all necessary
corporate action of the Indenture Trustee and each has been duly executed
and delivered by the Indenture Trustee.
(iii) Assuming due authorization, execution and delivery thereof by
the other parties thereto, the Indenture, the Sale and Servicing
Agreement and the Administration Agreement constitute the legal, valid
and binding agreements of the Indenture Trustee enforceable against the
Indenture Trustee in accordance with their terms, except as the
enforceability thereof may be (a) limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation, or other similar
laws affecting the rights of creditors generally, and (b) subject to
general principles of equity.
(iv) The execution and delivery by the Indenture Trustee of the
Indenture and the Administration Agreement and the acceptance of the Sale
and Servicing Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any Illinois or
United States federal governmental authority.
(v) Each of the Notes has been duly authenticated by the Indenture
Trustee.
(vi) Neither the consummation by the Indenture Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture or the Administration Agreement nor the fulfillment of the
terms thereof by the Indenture Trustee will conflict
15
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
Indenture Trustee or the terms of any indenture or other agreement or
instrument known to such counsel to which the Indenture 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 Indenture Trustee or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Indenture
Trustee or any of its subsidiaries.
(vii) To the knowledge of such counsel, there is no action, suit or
proceeding pending or threatened against the Indenture Trustee (as
trustee under the Indenture or in its individual capacity) before or by
any governmental authority that, if adversely decided, would materially
adversely affect the ability of the Indenture Trustee to perform its
obligations under the Indenture, the Sale and Servicing Agreement or the
Administration Agreement.
(viii) The execution, delivery and performance by the Indenture
Trustee of the Sale and Servicing Agreement, the Indenture and 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 Indenture Trustee that is unrelated to the transactions
contemplated in such Agreements.
(j) You shall have received an opinion addressed to you and DCS of
[Counsel to Owner Trustee], 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 terms under the laws of the State of New York, the
State of Delaware and the federal law of the United States.
16
(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.
(k) 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 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
17
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 or the Company has occurred.
(l) 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.
(m) The Offered Notes shall have been rated "AAA" by Standard & Poor's
and Fitch and "Aaa" by Moody's.
(n) 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.
(o) On the Closing Date, the sum of $[_______________] and
$[_______________] aggregate principal amount of the Certificates shall have
been issued to the Company.
(p) 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 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 with
written information furnished to the Seller by any Underwriter through you
specifically for use therein.
18
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, 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 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
19
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 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.
20
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 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) and (v) of Section 8(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 Offered Notes. Nothing contained in
this Section 12 shall limit the recourse of the Seller against the
Underwriters.
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 [Representative Underwriter],[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, 27777
Franklin Road, 25th Floor, Southfield, Michigan 48034, 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.
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 9, and
no other person will have any right or obligations hereunder.
14. 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.
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.
21
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 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:
SCHEDULE I
Class A-2 Notes
Principal Amount of
the Class A-2 Notes
[Representative Underwriter]............................................$[_______________]
[Underwriter]...........................................................$[_______________]
[Underwriter]...........................................................$[_______________]
[Underwriter]...........................................................$[_______________]
[Underwriter]...........................................................$[_______________]
------------------
Total.......................$[_______________]
==================
Class A-3 Notes
Principal Amount of
the Class A-3 Notes
[Representative Underwriter]............................................$[_______________]
[Underwriter]...........................................................$[_______________]
[Underwriter]...........................................................$[_______________]
[Underwriter]...........................................................$[_______________]
[Underwriter]...........................................................$[_______________]
------------------
Total.......................$[_______________]
==================
Class A-4 Notes
Principal Amount of
the Class A-4 Notes
[Representative Underwriter]............................................$[_______________]
[Underwriter]...........................................................$[_______________]
[Underwriter]...........................................................$[_______________]
[Underwriter]...........................................................$[_______________]
[Underwriter]...........................................................$[_______________]
------------------
Total...................... $[_______________]
==================
I-1
EXHIBIT A
Collateral Materials
A-1