EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
DAIMLERCHRYSLER MASTER OWNER TRUST
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
Seller
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
Servicer
UNDERWRITING AGREEMENT
(Standard Terms)
____________, 200[ ]
[ ]
As Underwriter or as the Representative
of the Underwriters named in the
Terms Agreement
Dear Sirs:
DaimlerChrysler Master Owner Trust, a Delaware business
trust (the "Issuer"), proposes to, and DaimlerChrysler Wholesale Receivables
LLC, a Delaware limited liability company ("DCWR"), as seller (in such
capacity, the "Seller") and beneficiary of the Issuer (in such capacity, the
"Beneficiary") and DaimlerChrysler Services North America LLC, a Michigan
limited liability company, as originator (in such capacity, the "Originator")
and servicer (in such capacity, the "Servicer"), propose to cause the Issuer
to, sell the notes of the series designated in the applicable Terms Agreement
(as hereinafter defined) (the "Notes"). The Notes will be issued pursuant to
the Indenture, dated as of [_________], 2002, as supplemented by the Indenture
Supplement having the date stated in the applicable Terms Agreement (as so
supplemented and as otherwise modified or amended from time to time, the
"Indenture"), between the Issuer and The Bank of New York, as trustee (in such
capacity, the "Indenture Trustee"). The Issuer is operated pursuant to a Trust
Agreement, dated as of [________], 2002 (the "Trust Agreement"), between DCWR,
as Beneficiary, and [__________], as owner trustee (the "Owner Trustee"). The
Notes will be secured by certain assets of the Issuer, including the
Collateral Certificate referred to below (collectively, the "Collateral").
DCWR has transferred and proposes to continue to transfer
receivables to the CARCO Auto Loan Master Trust (the "CARCO Receivables
Trust") pursuant to an Amended and Restated Pooling and Servicing Agreement,
dated as of December 5, 2001, and as
supplemented by the Series 2002-CC Series Supplement having the date stated in
the applicable Terms Agreement (as modified or amended from time to time, the
"Pooling and Servicing Agreement"), among DCWR, DaimlerChrysler Services North
America LLC ("DCS"), as Servicer, and The Bank of New York, as trustee (the
"CARCO Receivables Trustee"). The assets of the CARCO Receivables Trust
include, among other things, a pool of receivables (the "Receivables")
generated from time to time pursuant to wholesale automobile loan revolving
credit agreements of DCS. Pursuant to the Pooling and Servicing Agreement,
DCWR has caused the CARCO Receivables Trust to issue to the Issuer a
collateral certificate (the "Collateral Certificate"). The Collateral
Certificate is an investor certificate under the Pooling and Servicing
Agreement that represents undivided interests in certain assets of the CARCO
Receivables Trust.
The Notes designated in the applicable Terms Agreement will be
sold in a public offering by the Issuer through [ ], as underwriter, or
through certain underwriters which include [ ], one or more of which may with
[ ] act as the representative of such underwriters listed on Schedule I to the
applicable Terms Agreement. Any underwriter through which Notes are sold shall
be referred to herein as an "Underwriter" or, collectively, all such
Underwriters may be referred to as the "Underwriters"; each representative
thereof may be referred to herein together as "Representative," which, if the
context herein requires, shall include [ ] in its capacity as Underwriter of
any Notes or as Representative. Notes sold to the Underwriters for which [ ]
is the Representative shall be sold pursuant to a Terms Agreement by and among
DCWR, DCS and the Representative, a form of which is attached hereto as
Exhibit A (a "Terms Agreement"), which incorporates by reference this
Underwriting Agreement (the "Agreement," which may include the applicable
Terms Agreement if the context so requires). Any Notes sold pursuant to any
Terms Agreement may include the benefits of an overcollateralization amount,
reserve account, letter of credit, surety bond, interest rate swap or other
contract or agreement for the benefit of the Noteholders of such Series
("Credit Enhancement"). The term "applicable Terms Agreement" means the Terms
Agreement dated the date hereof. To the extent not defined herein, capitalized
terms used herein have the meanings assigned to such terms in the Indenture or
the Pooling and Servicing Agreement. Unless otherwise stated herein or in the
applicable Terms Agreement, as the context otherwise requires or if such term
is otherwise defined in the Indenture or the Pooling and Servicing Agreement,
each capitalized term used or defined herein or in the applicable Terms
Agreement shall relate only to the Notes designated in the applicable Terms
Agreement and no other series, class or tranche of notes issued by the Issuer.
Upon the execution of the applicable Terms Agreement, DCWR agrees
with the Underwriters as follows:
1. Purchase, Sale and Delivery of the Notes. Subject to the terms
and conditions herein set forth and in the applicable Terms Agreement, DCWR
agrees to cause the Issuer to sell and deliver the Notes to the several
Underwriters as hereinafter provided, and each Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Issuer the respective principal amount of the Notes set forth
opposite such Underwriter's name in the applicable Terms Agreement. The Notes
are to be purchased by the Underwriters at the purchase price(s) set forth in
such Terms Agreement.
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2. Offering by Underwriters. DCWR understands that the
Underwriters intend (i) to make a public offering of the Notes as soon after
the Registration Statement and this Agreement and the applicable Terms
Agreement have become effective as in the judgment of the Representative is
advisable and (ii) initially to offer the Notes upon the terms set forth in
the Prospectus.
3. Payment for the Notes. Unless otherwise provided in the
applicable Terms Agreement, payment for the Notes shall be made to DCWR or to
its order by wire transfer of same day funds at [ ] New York City time, on
the Closing Date (as hereinafter defined), or at such other time on the same or
such other date, not later than the [ ] Business Day thereafter, as the
Representative and DCWR may agree upon in writing. The time and date of such
payment for the Notes are referred to herein as the "Closing Date." As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City.
Unless otherwise provided in the applicable Terms Agreement,
payment for the Notes shall be made against delivery to the Representative for
the respective accounts of the several Underwriters of the Notes registered in
the name of Cede & Co. as nominee of The Depository Trust Company and in such
denominations as the Representative shall request in writing not later than
two full Business Days prior to the Closing Date, with any transfer taxes
payable in connection with the transfer to the Underwriters of the Notes duly
paid by DCWR. The Notes will be made available for inspection and packaging by
the Representative at the office of Sidley Austin Brown & Wood LLP not later
than 1:00 P.M., New York City time, on the Business Day prior to the Closing
Date.
4. Representations and Warranties. Upon the execution of the
applicable Terms Agreement, each of the Seller and DCS represents and warrants
to 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. 333-73570) on such Form, including a related preliminary
base prospectus and a preliminary prospectus supplement, for the registration
of the Notes under the Act. The Seller may have filed one or more amendments
thereto, each of which amendments has previously been furnished to you. Such
registration statement has become effective. The Seller will next file with
the Commission a final base prospectus and a final prospectus supplement
relating to the Notes in accordance with Rules 415 and 424(b)(2) or (5). [The
Seller will file 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 (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in the Prospectus
with respect to the Notes and the offering thereof. As filed, such amendment
and form of final prospectus supplement, shall include all Rule 430A
Information, together with all other such required information, with respect
to the 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
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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 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 and the applicable Terms Agreement are 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 Notes and the offering thereof
and is used prior to filing of the Prospectus. "Prospectus" shall mean the
prospectus supplement relating to the 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 430A Information" means information
with respect to the Notes and the offering of the 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 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 and
the applicable Terms Agreement, the Registration Statement did or will, and,
when the Prospectus is first filed 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
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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 neither the Seller nor DCS makes any 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).
(c) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by DCWR and DCS and when executed and
delivered by DCWR and DCS, each of this Agreement and the applicable Terms
Agreement will constitute a valid and binding agreement of DCWR and DCS.
(d) None of DCWR, DCS or anyone acting on its behalf has taken
any action that would require qualification of the Pooling and Servicing
Agreement or the Trust Agreement under the Trust Indenture Act or require
registration of DCWR, the CARCO Receivables Trust or the Issuer under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), nor
will DCWR or DCS act, nor has either of them authorized, nor will either of
them authorize, any person to act in such a manner.
(e) The Seller's assignment and delivery of the Collateral
Certificate to the Issuer will vest in the Issuer 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 other than the
lien or the Indenture.
(f) The Issuer's assignment of the Collateral Certificate 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.
5. Covenants. Upon the execution of the applicable Terms
Agreement, the Seller and DCS, as applicable, covenant and agree with the
several Underwriters that:
(a) Prior to the termination of the offering of the 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, 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 each of you of such timely
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filing. [The Seller will file the Collateral Materials with the Commission
within the time period required by the Commission.]
(b) The Seller will advise you promptly of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information. The Seller also will advise
you promptly of the effectiveness of any amendment to the Registration
Statement, 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 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 paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission or effect such
compliance. Any such filing shall not operate as a waiver or limitation of any
right of any Underwriter hereunder.
(d) The Seller will prepare and file, or cause to be prepared
and filed, with the Commission such other amendments or supplements as you may
reasonably request.
(e) As soon as practicable, but not later than fourteen
months after the Closing Date, the Seller will cause the Issuer to make
generally available to holders of the Notes an earnings statement of the
Issuer 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 and Rule 158
under the Act.
(f) 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.
(g) The Seller will arrange for the qualification of the
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.
(h) For a period from the date of this Agreement until the
retirement of the Notes or until such time as the Underwriters shall cease to
maintain a secondary market in the Notes, whichever occurs first, the Seller
will deliver to you the annual statements of
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compliance and the annual independent certified public accountants' reports
furnished to the Indenture Trustee or the Owner Trustee pursuant to the
Indenture and the Pooling and Servicing Agreement, as soon as such statements
and reports are furnished to the Indenture Trustee or the Owner Trustee.
(i) So long as any of the 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 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 or DCS filed with any government or regulatory authority
that is otherwise publicly available, as either of you may reasonably request.
(j) On or before the Closing Date, DCS shall cause its
computer records relating to the Receivables to be marked to show the CARCO
Receivables Trust's absolute ownership of the Receivables and, from and after
the Closing Date, DCS shall not take any action inconsistent with the CARCO
Receivables Trust's ownership of such Receivables, other than as permitted by
the Sale and Servicing Agreement.
(k) To the extent, if any, that the ratings provided with
respect to the Notes by the rating agency or agencies that initially rate the
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.
(l) 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, automobile or light duty
dealer floorplan receivables in such a manner as would constitute a public
offering to persons in the United States.
6. Payment of Expenses. The Seller will pay all expenses incident
to the performance of its obligations under this Agreement and the applicable
Terms 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 and the applicable Terms Agreement, (iii) the
preparation, issuance and delivery of the Collateral Certificate to the
Indenture Trustee and the Notes to the Underwriters, (iv) the fees and
disbursements of the Seller's counsel and accountants, (v) the qualification
of the Notes under securities laws in accordance with the provisions of
Section 5(f), including filing fees and the fees and disbursements of counsel
for you in connection therewith and in connection with the preparation of any
blue sky or legal investment survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and
of each amendment thereto, and of any preliminary prospectus and the
Prospectus, (vii) the printing and delivery to the Underwriters of copies of
any blue sky or legal investment survey prepared in connection with the 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
Issuer incurred as
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a result of providing the opinions required by Section 7(h) and the second
sentence of Section 7(i) hereof.
7. Conditions of the obligations of the Underwriters. The several
obligations of the Underwriters hereunder are subject to the performance by
DCWR of its obligations hereunder and under the applicable Terms Agreement and
to the following additional conditions:
(a) The Registration Statement shall have become effective.
(b) On or prior to the Closing Date, you shall have received
a letter or letters, dated the date of the applicable Terms Agreement and as
of the Closing Date, of KPMG LLP, Certified Public Accountants (or such other
independent accountants as shall be named in the applicable Terms Agreement)
substantially in the form heretofore agreed and otherwise in form and in
substance satisfactory to you and your counsel.
(c) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the Rules and Regulations and in accordance with Section 5(b) of
this Agreement; and, as of the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or, to the knowledge of
DCWR, threatened by the Commission; and all requests for additional
information from the Commission with respect to the Registration Statement
shall have been complied with to the satisfaction of the Representative.
(d) Subsequent to the execution and delivery of this
Agreement and the applicable Terms 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 CARCO Receivables Trust, the Issuer, the Seller, DCS, DaimlerChrysler
Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters,
materially impairs the investment quality of the Notes or makes it impractical
or inadvisable to market the 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, or 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;
(iii) any banking moratorium declared by federal or New York authorities; (iv)
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 such change makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Notes or (v) a material disruption has occurred in securities
settlement or clearance services in the United States.
(e) The representations and warranties of DCWR and DCS
contained herein are true and correct in all material respects on and as of
the Closing Date as if made on and as of the Closing Date, and DCWR and DCS
shall have complied with all agreements and all
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conditions on its part to be performed or satisfied hereunder and under the
applicable Terms Agreement at or prior to the Closing Date.
(f) You shall have received an opinion of in-house counsel in
the office of DCWR and DCS, addressed to you and the Indenture Trustee dated
the Closing Date, satisfactory in form and substance to you and your counsel,
to the effect that:
(i) DCS has been duly formed 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 (limited liability company and
other) 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 applicable Terms Agreement, the Pooling and Servicing
Agreement, the Receivables Purchase 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 and to
consummate the transactions contemplated herein and therein.
(ii) DCWR has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware with full power and authority (limited liability company and
other) 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 applicable Terms Agreement, the Receivables Purchase
Agreement, the Pooling and Servicing Agreement and the Trust Agreement
and had at all times, and now has, the power, authority and legal right
to acquire, own and sell the Receivables and the Collateral Certificate
and to consummate the transactions contemplated herein and therein.
(iii) Each of DCS and DCWR 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 DCWR or the CARCO Receivables Trustee on behalf of any Collateral
Certificateholder.
(iv) The direction by DCWR to the CARCO Receivables Trustee
to authenticate the Collateral Certificate has been duly authorized by
DCWR, the Collateral Certificate has been duly executed and delivered by
DCWR and, when authenticated by the CARCO Receivables Trustee in
accordance with the Pooling and Servicing Agreement and delivered and
paid for pursuant to this Agreement, will be duly issued and entitled to
the benefits and security afforded by the Pooling and Servicing
Agreement, subject as to the enforcement of remedies (x) to applicable
bankruptcy, insolvency, reorganization, moratorium, and other similar
laws affecting creditors, rights generally, (y) to general principles of
equity (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law), and (z) to the further
qualification that certain of the remedial provisions in the Pooling and
Servicing Agreement may be limited or rendered unenforceable under the
laws of the State of New York (but such laws do not, in such counsel's
opinion, make the remedies provided by
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the Pooling and Servicing Agreement unsatisfactory for the
realization of the benefits provided thereby).
(v) The direction by DCWR to the Owner Trustee to
authenticate the Owner Certificate has been duly authorized by the DCWR
and, when the Owner Certificate has been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the Trust Agreement and
delivered, the Owner Certificate 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).
(vi) The direction by the Issuer to the Indenture Trustee to
authenticate the Notes has been duly authorized by the Issuer 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).
(vii) The Receivables Purchase Agreement has been duly
authorized, executed and delivered by U.S. Auto Receivables Company, a
predecessor to DCWR, and the Pooling and Servicing Agreement and the
Trust Agreement have been duly authorized, executed and delivered by
DCWR, and each is the legal, valid and binding obligation of DCWR
enforceable against DCWR in accordance with its 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.
(viii) This Agreement has been duly authorized, executed and
delivered by DCS and DCWR.
(ix) The Receivables Purchase Agreement has been duly
authorized, executed and delivered by CCC, a predecessor of DCS, and the
Pooling and Servicing Agreement and the Administration Agreement has been
duly authorized, executed and delivered by DCS, and each is the legal,
valid and binding obligation of DCS enforceable in accordance with its
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.
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(x) Neither the merger of CCC into CFC Corp. and the
assumption by CFC Corp. of all of CCC's obligations under the Receivables
Purchase Agreement and the Pooling and Servicing Agreement (prior to its
restatement), nor the merger of CFC Corp. into CFC and the assumption by
CFC of all of CFC Corp.'s obligations under the Receivables Purchase
Agreement and the Pooling and Servicing Agreement (prior to its
restatement), nor the merger of CFC into DCS and the assumption by DCS of
all of CFC's obligations under the Receivables Purchase Agreement and the
Pooling and Servicing Agreement (prior to its restatement), nor the
transfer of the Receivables from DCS to DCWR, nor the transfer of the
Receivables from DCWR to the CARCO Receivables Trustee acting on behalf
of the CARCO Receivables Trust, nor the assignment of the Collateral
Security to DCWR, nor the assignment of the Collateral Security to the
CARCO Receivables Trustee acting on behalf of the CARCO Receivables
Trust, nor the assignment of the Receivables Purchase Agreement by DCWR
to the CARCO Receivables Trustee on behalf of the CARCO Receivables
Trust, nor the execution and delivery of this Agreement, the applicable
Terms Agreement, the Pooling and Servicing Agreement or the
Administration Agreement by DCS, nor the execution and delivery of the
Receivables Purchase Agreement and the Pooling and Servicing Agreement
(prior to its restatement) by CCC, nor the execution and delivery of this
Agreement, the applicable Terms Agreement, the Receivables Purchase
Agreement, the Pooling and Servicing Agreement, the Trust Agreement and
the Collateral Certificate by DCWR, nor the consummation of any
transactions contemplated in this Agreement, the applicable Terms
Agreement, the Receivables Purchase Agreement, the Trust Agreement, the
Pooling and Servicing Agreement, the Indenture or the Administration
Agreement, nor the fulfillment of the terms of this Agreement, the
applicable Terms Agreement, the Receivables Purchase Agreement, the
Pooling and Servicing Agreement, the Trust Agreement, the Indenture, the
Collateral Certificate, the Notes and the Administration Agreement by DCS
or DCWR, 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 operating agreement, the certificate of formation or
organization or the limited liability company agreement, as applicable,
of DCS or DCWR or of any indenture or other agreement or instrument to
which DCS or DCWR is a party or by which any of them or their respective
property is bound, or result in a violation, or contravene the terms, of
any statute, order or regulation applicable to DCS or DCWR of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over any of them.
(xi) 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 this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement, the Receivables Purchase
Agreement, the Trust Agreement, the Collateral Certificate, the
Indenture, the Notes or the Administration Agreement, (2) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement, the applicable Terms Agreement, the Receivables Purchase
Agreement, the Pooling and Servicing Agreement, the Trust Agreement, the
Indenture or the Administration Agreement or the execution and delivery
thereof, (3) that might materially and adversely affect the performance
by DCWR of its obligations under, or the validity or enforceability of,
this Agreement, the applicable
11
Terms Agreement, the Receivables Purchase Agreement, the Pooling and
Servicing Agreement, the Trust Agreement, the Indenture or the
Administration Agreement or (4) that might materially and adversely
affect the performance by DCS of its obligations under, or the
validity or enforceability of, this Agreement, the applicable Terms
Agreement, the Receivables Purchase Agreement, the Pooling and
Servicing Agreement or the Administration Agreement.
(xii) To the best knowledge of such counsel and except as
set forth in the Prospectus, 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 DCWR or DCS is a party or by which either of them
is bound, which default is or would be material for the financial
condition, earnings, prospects, business or properties of DCWR or DCS and
its subsidiaries, taken as a whole.
(xiii) Nothing has come to such counsel's attention that
would lead such counsel to believe that the representations and
warranties of (x) DCS contained in this Agreement, the applicable Terms
Agreement, the Receivables Purchase Agreement or the Pooling and
Servicing Agreement are other than as stated therein or (y) DCWR
contained in this Agreement, the applicable Terms Agreement, the
Receivables Purchase Agreement, the Pooling and Servicing Agreement or
the Trust Agreement are other than as stated therein.
(xiv) The Seller is the sole owner of all right, title and
interest in, and has good and marketable title to, the Receivables and
the Collateral Security to be transferred by it to the CARCO Receivables
Trust. The assignment of the Receivables and the Collateral Security, all
documents and instruments relating thereto and all proceeds thereof to
the CARCO Receivables Trustee, pursuant to the Pooling and Servicing
Agreement, vest in the CARCO Receivables Trustee all interests which are
purported to be conveyed thereby, free and clear of any liens, security
interests or encumbrances except as specifically permitted pursuant to
the Pooling and Servicing Agreement.
(xv) Immediately prior to the transfer of the Receivables to
the CARCO Receivables Trustee, DCWR's interest in the Receivables, the
Collateral Security (including the security interests in the Vehicles
securing the Receivables) and the proceeds of each of the foregoing was
perfected upon the filing of the UCC-1 financing statement with the
Secretary of State of the State of Michigan and constituted a perfected
first priority interest therein, subject to the rights of the Purchased
Receivables Owners in the Collateral Security (other than the Vehicles
securing the Receivables). If a court concludes that the transfer of the
Receivables from DCWR to the CARCO Receivables Trustee is a sale, the
interest of the CARCO Receivables Trustee in the Receivables, the
Collateral Security (including the security interests in the Vehicles
securing the Receivables) and the proceeds of each of the foregoing will
be perfected upon the filing of the UCC-1 financing statement, the form
of which is attached to such opinion with the Secretary of State of the
State of Michigan and will constitute a first priority perfected
ownership interest therein, subject to the rights of the Purchased
Receivables Owners in
12
the Collateral Security (other than the Vehicles securing the
Receivables). If a court concludes that such transfer is not a sale,
the Pooling and Servicing Agreement constitutes a grant by DCWR to
the CARCO Receivables Trustee of a valid security interest in the
Receivables, the Collateral Security (including the security
interests in the Vehicles securing the Receivables) and the proceeds
of each of the foregoing, which security interest is perfected upon
the filing of the UCC-1 financing statement the form of which is
attached to such opinion with the Secretary of State of the State of
Michigan and will constitute a first priority perfected security
interest therein, subject to the rights of the Purchased Receivables
Owners in the Collateral Security (other than the Vehicles securing
the Receivables). 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 referred to above, is necessary to perfect and
maintain the interest of the CARCO Receivables Trustee in the
Receivables, the Collateral Security (including the security
interests in the Vehicles securing the Receivables) and the proceeds
of each of the foregoing against third parties.
(xvi) The Receivables are chattel paper as defined in the
Uniform Commercial Code.
(xvii) The Pooling and Servicing Agreement, the Receivables
Purchase Agreement, the Indenture and the Trust Agreement conform in all
material respects with the description thereof contained in the
Registration Statement and the Prospectus and any supplement thereto.
(xviii) The statements in the Registration Statement and the
Basic Prospectus under the heading "Risk Factors--Risk factors relating
to the collateral certificate and the CARCO receivables trust--Various
legal aspects may cause delays in your receiving payments or may result
in reduced payments or losses on your notes" and "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 Basic Prospectus and
any supplement thereto under the caption "The Notes", "Sources of Funds
to Pay the Notes", "The Indenture", "Description of the Investor
Certificates Issued by the CARCO Receivables Trust", "The Receivables
Purchase Agreement", "Series Provisions" and "Deposit and Application of
Funds", insofar as such statements constitute a summary of the Collateral
Certificate, the Pooling and Servicing Agreement, the Indenture and the
Notes constitute a fair summary of such documents.
(xx) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation of
the transactions contemplated in this Agreement, the applicable Terms
Agreement, the Receivables Purchase Agreement, the Pooling and Servicing
Agreement, the Trust Agreement, the Indenture or the Administration
Agreement except such filings with respect to the transfer of the
Receivables to DCWR pursuant to the Receivables Purchase Agreement, and
the transfer of the Receivables to the CARCO Receivables Trustee acting
on behalf
13
of the CARCO Receivables Trust pursuant to the Pooling and Servicing
Agreement, as have been made and such other approvals as have been
obtained.
(xxi) Such counsel is familiar with DCS's standard operating
procedures relating to DCS's acquisition of a perfected first priority
security interest in the vehicles financed by DCS pursuant to wholesale
automobile revolving credit agreements in the ordinary course of DCS's
business. Assuming that DCS's standard procedures are followed with
respect to the perfection of security interests in the Vehicles (and such
counsel has no reason to believe that DCS has not or will not continue to
follow its standard procedures in connection with the perfection of
security interests in the Vehicles), DCS has acquired or will acquire a
perfected first priority security interest in the Vehicles.
(xxii) All actions required to be taken and all filings
required to be made under the Securities Act and the Exchange Act prior
to the sale of the Certificates and the Notes have been duly taken or
made.
(xxiii) The Pooling and Servicing Agreement and the Trust
Agreement are not required to be qualified under the Trust Indenture Act,
and the CARCO Receivables Trust and the Issuer are not required to be
registered under the Investment Company Act.
(xxiv) The Indenture has been duly qualified under the Trust
Indenture Act.
(xxv) DCWR is not, and will not as a result of the offer and
sale of the Notes as contemplated in the Prospectus 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 which 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
included or incorporated by reference as exhibits thereto, in order to
make the statements therein not misleading, 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
14
by Rule 424(b) and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued, and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and the
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the requirements
of the Act, the Exchange Act, the Trust Indenture Act and the Rules
and Regulations.
(xxix) Such counsel has examined the Registration Statement
and the Prospectus, and nothing has come to such counsel's attention that
would lead such counsel to believe that the Registration Statement or the
Prospectus or any amendment or supplement thereto as of the respective
dates thereof (other than the financial statements and other financial
and statistical information contained therein, as to which such counsel
need not express any view) contains an untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements therein not misleading.
(xxx) The Indenture constitutes a grant by the Issuer to the
Indenture Trustee of a valid security interest in the Collateral
Certificate, which security interest will be perfected upon the delivery
to the Indenture Trustee of the Collateral Certificate registered in the
name of the Indenture Trustee and will constitute a first priority
perfected security interest therein. No filing or other action, other
than the action described in the immediately preceding sentence, is
necessary to perfect and maintain the interest or the security interest
of the Indenture Trustee in the Collateral Certificate and the proceeds
of each of the foregoing against third parties.
(xxxi) The Collateral Certificate is a "certificated
security" as defined in the UCC.
(xxxii) The Issuer 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 Indenture, the
Administration Agreement, the Notes and the Owner Certificate.
(xxxiii) The Indenture 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
Issuer, enforceable against the Issuer 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.
(g) You shall have received an opinion of an in-house
counsel in the office of the General Counsel of DCS and DCWR, addressed to you
and the CARCO Receivables Trustee, dated the Closing Date and satisfactory in
form and substance to you and your counsel relating to certain Michigan tax
matters.
15
(h) You shall have received an opinion addressed to you of
Sidley Austin Brown & Wood LLP, in its capacity as federal tax counsel to the
Issuer, to the effect that the statements in the Base Prospectus under the
headings "Summary - Tax Status" and "Tax Matters", to the extent they
constitute statements of matters of federal income tax law or legal
conclusions with respect thereto, are correct in all material respects.
(i) You shall have received an opinion addressed to you of
Sidley Austin Brown & Wood LLP, in its capacity as counsel to the
Underwriters, dated the Closing Date, with respect to the validity of the
Notes and the Collateral Certificate and such other related matters as you
shall require, and the Seller shall have furnished or caused to be furnished
to such counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters. Sidley Austin Brown & Wood LLP, in
its capacity as special ERISA counsel to the Issuer, 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.
(j) You shall have received an opinion or opinions of Sidley
Austin Brown & Wood LLP, special counsel for DCWR and the Issuer, subject to
customary qualifications, assumptions, limitations and exceptions, dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative and its counsel, with respect to certain matters relating to
the characterization of the transfer of the Receivables to the CARCO
Receivables Trust. In addition, you shall have received a reliance letter with
respect to any opinion that DCWR is required to deliver to the Rating Agency.
(k) You shall have received certificates dated the Closing
Date of an officer, who shall be familiar with the offering of the Notes, of
each of DCS and Chrysler Financial Receivables Corporation, as a member of the
Seller, in which such officers shall state that, to the best of their
knowledge after reasonable investigation, (i) the representations and
warranties of the Seller or DCS, as the case may be, contained in the
Receivables Purchase Agreement and the Pooling and Servicing Agreement,
respectively, are true and correct, that the Seller or DCS, 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 December 31,
2001, except as may be disclosed in the Prospectus or, in the case of
DaimlerChrysler Corporation, as may be disclosed publicly by DaimlerChrysler
Corporation prior to the execution of this Agreement, no material adverse
change, or any development involving a prospective material adverse change, in
or affecting particularly the business or properties of the CARCO Receivables
Trust, the Seller, DCS or DaimlerChrysler Corporation has occurred.
(l) You shall have received an opinion of Emmet, Marvin &
Martin LLP, counsel to the CARCO Trust Trustee, dated the Closing Date,
satisfactory in form and substance to you and your counsel, to the effect
that:
16
(i) The Bank of New York is a banking corporation organized
and validly existing and in good standing under the laws of the State of
New York and is authorized and qualified to accept the trusts imposed by
the Pooling and Servicing Agreement and to act as CARCO Receivables Trust
Trustee under the Pooling and Servicing Agreement;
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the CARCO Receivables Trust Trustee
and constitutes a legal, valid and binding obligation of the CARCO
Receivables Trust Trustee, enforceable against the CARCO Trust Trustee in
accordance with its terms, except as such enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to the enforcement of creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) The CARCO Trust Trustee has duly executed and
authenticated the Collateral Certificate;
(iv) The execution and delivery of the Pooling and Servicing
Agreement by the CARCO Trust Trustee and the performance by the CARCO
Trust Trustee of its terms do not conflict with or result in a violation
of (x) any law or regulation of the United States of America or the State
of New York governing banking or trust powers of the CARCO Trust Trustee,
or (y) the organization certificate or by-laws of the CARCO Trust
Trustee;
(v) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the
State of New York having jurisdiction over banking or trust powers of the
CARCO Trust Trustee is required in connection with the execution and
delivery by the CARCO Trust Trustee of the Pooling and Servicing
Agreement or the performance by the CARCO Trust Trustee thereunder;
(vi) The Indenture has been duly authorized, executed and
delivered by the Indenture Trustee and constitutes a legal, valid and
binding obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to the enforcement of
creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(vii) The Indenture Trustee has duly executed and
authenticated the Notes on the Closing Date;
(viii) The execution and delivery of the Indenture by the
Indenture Trustee and the performance by the Indenture Trustee of the
terms of the Indenture do not conflict with or result in a violation of
(x) any law or regulation of the United States of America or the State of
New York governing banking or trust powers of the Indenture Trustee, or
(y) the organization certificate or by-laws of the Indenture Trustee;
17
(ix) No approval, authorization or other action by, or
filing with, any governmental authority of the United States of America
or the State of New York having jurisdiction over banking or trust powers
of the Indenture Trustee is required in connection with the execution and
delivery by the Indenture Trustee of the Indenture or the performance by
the Indenture Trustee thereunder;
(x) To the best knowledge of such counsel, there is no
action, suit or proceeding pending or threatened against the Indenture
Trustee (as Indenture 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; and
(xi) The execution, delivery and performance by the
Indenture Trustee of the Indenture will not subject any of the property
or assets of the Issuer, or any portion thereof, to the imposition of any
lien which may be asserted against the Issuer by the Indenture Trustee in
its capacity as Indenture Trustee.
(m) You shall have received an opinion of Pryor Cashman
Sherman & Flynn LLP, Layton & Finger, P.A., counsel to the Owner Trustee,
dated the Closing Date, satisfactory in form and substance to you and your
counsel, to the effect that:
(i) The Owner Trustee is duly incorporated and validly
existing as a banking corporation in good standing under the laws of the
State of Delaware.
(ii) The Owner Trustee has power and authority to execute,
deliver and perform the Trust Agreement and to consummate the
transactions contemplated thereby.
(iii) The Trust Agreement, the Administration Agreement and
the Indenture have been duly authorized, executed and delivered by the
Owner Trustee and constitute a legal, valid and binding obligations of
the Owner Trustee, enforceable against the Owner Trustee in accordance
with their terms.
(iv) Each of the Indenture, the Notes, the Owner Certificate
and the other transaction documents referred to in such opinion
(collectively referred to in this subsection (m) as the "Trust
Documents") has been duly executed and delivered by the Owner Trustee, as
Owner Trustee on behalf of the Issuer.
(v) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, of the Trust Agreement and the Trust Documents, nor the
consummation of the transactions by the Owner Trustee, in its individual
capacity or as Owner Trustee, as the case may be, 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 of the State of Delaware or the United
States of America governing banking or trust powers of the Owner Trustee
(other than the filing of the certificate of trust with the Delaware
Secretary of State, which certificate of trust has been duly filed).
18
(vi) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case maybe, of the Trust Agreement and the Trust Documents, nor the
consummation of the transactions by the Owner Trustee, in its individual
capacity or as Owner Trustee, as the case maybe, contemplated thereby, is
in violation of the charter or by laws of the Owner Trustee or of any
law, governmental rule or regulation of the State of Delaware or of the
United States of America governing banking or trust powers of the Owner
Trustee or, to our knowledge, without independent investigation, of any
indenture, mortgage, bank credit agreement, note or bond purchase
agreement, long-term lease, license or other agreement or instrument to
which it is a party or by which it is bound or, to our knowledge, without
independent investigation of any judgement or order applicable to the
Owner Trustee.
(vii) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental
agency or commission of the State of Delaware is required by or with
respect to the Owner Trustee, in its individual capacity or as Owner
Trustee, as the case may be, for the valid execution and delivery of the
Trust Agreement or the Trust Documents, or for the validity or
enforceability thereof, other than the filing of the certificate of
trust, which certificate of trust has been duly filed.
(viii) To such counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Owner Trustee before any court or other
government authority which, if adversely determined, would materially and
adversely affect the ability of the Owner Trustee to carry out the
transactions contemplated by the Trust Agreement.
(n) The Underwriters shall have received an opinion of
[Richards, Layton & Finger, P.A.,] special Delaware counsel to the Issuer,
dated the Closing Date, in form and substance satisfactory to you and your
counsel, substantially to the effect that:
(i) The Issuer has been duly formed and is validly existing
in good standing as a business trust under the Delaware Business Trust
Act, 12 Del.C. (ss.ss.)3801, et seq. (referred to in this subsection (o)
as the "Act").
(ii) The Trust Agreement is a legal, valid and binding
obligation of the Owner Trustee and the Beneficiary, enforceable against
the Owner Trustee and the Beneficiary, in accordance with its terms.
(iii) The Trust Agreement authorizes the Issuer to execute
and deliver the Indenture and the other transaction documents referred to
in such opinion (collectively referred to in this subsection (n) as the
"Trust Documents"), to issue the Notes and the trust certificate
(referred to in this subsection (n) as the "Owner Certificate") and to
grant the Collateral to the Indenture Trustee as security for the Notes.
(iv) The Issuer has the power and authority, pursuant to the
Trust Agreement and the Act, to execute, deliver and perform its
obligations under the Trust Documents, the Notes and the Owner
Certificate and has duly
19
authorized, executed and delivered such agreements and obligations.
(v) When the Owner Certificate is duly executed and issued
by the Issuer and duly authenticated by the Owner Trustee in accordance
with the Trust Agreement, the Owner Certificate will be validly issued
and entitled to the benefits of the Trust Agreement.
(vi) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, the Notes or the Owner Certificate, nor
the consummation by the Issuer of any of the transactions by the Issuer
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 of the State
of Delaware, other than the filing of the certificate of trust with the
Delaware Secretary of State (which certificate of trust has been duly
filed) and the filing of any financing statements with the Delaware
Secretary of State in connection with the Trust Documents.
(vii) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, nor the consummation by the Issuer of the
transactions contemplated thereby, is in violation of the Trust Agreement
or of any law, rule or regulation of the State of Delaware applicable to
the Issuer.
(viii) Under (ss.ss.)3805(b) of the Act, no creditor of the
holder of the Owner Certificate shall have any right to obtain possession
of, or otherwise exercise legal or equitable remedies with respect to,
the property of the Issuer except in accordance with the terms of the
Trust Agreement.
(ix) Under (ss.ss.)3808(a) and (b) of the Act, the Issuer
may not be terminated or revoked by the Beneficiary, and the dissolution,
termination or bankruptcy of any holder of the Owner Certificate shall
not result in the termination or dissolution of the Issuer, except to the
extent otherwise provided in the Trust Agreement.
(x) The Owner Trustee is not required to hold legal title to
the owner trust estate in order for the Issuer to qualify as a business
trust under the Act.
(xi) There is no stamp, documentary or other excise tax imposed
by the State of Delaware upon the perfection of a security interest in the
Collateral Certificate;
(xii) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the transfer of the Collateral
Certificate to or from the Issuer;
(xiii) The corpus of the Issuer is not subject to any personal
property or similar ad valorem tax imposed by the State of Delaware;
20
(xiv) The characterization of the Issuer for federal income tax
purposes, whether as a trust, partnership or association taxable as a
corporation, will be determinative of the character of the Issuer for State
of Delaware income tax purposes; and, if the Issuer is characterized as a
partnership for State of Delaware income tax purposes, no State of Delaware
income tax is imposed on the Issuer. For State of Delaware income tax
purposes, taxable income would be derived from "federal taxable income,"
and for the purpose of ascertaining such taxable income for State of
Delaware income tax purposes, the amount of federal taxable income as
determined for federal income tax purposes would be determinative, whether
the amount of federal taxable income is determined upon the
characterization of the transaction as a sale or as a loan;
(xv) There is no stamp, documentary or other excise tax imposed
by the State of Delaware upon the issuance of the Notes;
(xvi) There is no income tax imposed by the City of Wilmington,
Delaware, upon the Issuer and the City of Wilmington, Delaware, is
prohibited by Delaware State law from imposing a personal property tax upon
or measured by the corpus of the Issuer; and
(xvii) The Beneficiary (as defined in the Trust Agreement) is
the sole beneficial owner of the Issuer.
(o) You shall have received evidence satisfactory to you
that the Notes shall be rated in accordance with the applicable Terms
Agreement by the Rating Agency.
(p) No Early Amortization Event, Reinvestment Event or Early
Redemption Event or other event or condition, which event or condition with
notice, the passage of time or both would result in an Early Amortization
Event, Reinvestment Event or Early Redemption Event, shall have occurred or
shall exist with respect to any outstanding Series on the Closing Date.
DCWR will furnish you, or cause you to be furnished with,
such number of conformed copies of such opinions, certificates, letters and
documents as you reasonably request.
8. Indemnification and Contribution. (a) The Seller and DCS
will, jointly and severally, indemnify and hold each Underwriter harmless
against any losses, claims, damages or liabilities, joint or several, to which
it 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
Prospectus or the Collateral Materials, or any amendment, exhibit or
supplement thereto, or any related preliminary prospectus, 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) of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Underwriter for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or action as
21
such expenses are incurred; provided, however, that neither the Seller nor DCS
will 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 the Underwriters through you specifically for use therein.
For all purposes contemplated hereby, the Seller, DCS and
the Underwriters acknowledge that the Seller prepared the Collateral
Materials.
(b) The Underwriters agree, severally and not jointly, 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 or the Prospectus, or any amendment, exhibit or
supplement thereto, or any related preliminary prospectus, 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 furnished to the Seller by the Underwriters specifically for use
therein (it being acknowledged by each of the Seller and DCS that the only
information furnished by the Underwriters to the Seller is the statements
regarding the Underwriter under the caption "Underwriting" in the prospectus
supplement dated [ ] contained in the Prospectus), 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 8 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 which 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, 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 8 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party (in the case of the
Underwriters, severally and not jointly) shall contribute to the amount paid or
payable by such indemnifying party as a result of the losses, claims, damages
22
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 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 which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Seller on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Seller bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Seller or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), the Underwriters shall
not be required to contribute any amount in excess of the underwriting discount
or commission applicable to the Notes. 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 and DCS under this Section
8 shall be in addition to any liability which the Seller or DCS 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 Underwriter under this Section shall be in addition to
any liability which the Underwriter may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Seller, to each officer
of the Seller who has signed the Registration Statement and to each person, if
any, who controls the Seller within the meaning of the Act.
9. Defaults of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase the Notes hereunder on the Closing
Date and arrangements satisfactory to you and the Seller for the purchase of
such Notes by other persons are not made within 36 hours after such default,
this Agreement and the applicable Terms Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Seller, except
as provided in Section 11. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
10. No Bankruptcy Petition. Each Underwriter covenants and agrees
that, prior to the date which is one year and one day after the payment in
full of all securities issued by the Seller or by a trust for which the Seller
was the depositor which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other Person in instituting against, the Seller any bankruptcy, reorganization,
arrangement, insolvency
23
or liquidation proceedings or other proceedings under any Federal or state
bankruptcy or similar law.
11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Seller or its officers and DCS or its officers and of the Underwriters set
forth in or made pursuant to this Agreement or contained in certificates of
officers of the Seller or of officers of DCS 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 the
Underwriters or of the Seller or DCS or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If for any reason the purchase
of the 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 6 and the respective obligations of the Seller and the Underwriters
pursuant to Section 8 shall remain in effect. If for any reason the purchase
of the Notes by the Underwriters is not consummated (other than because of a
failure to satisfy the conditions set forth in items (ii), (iii), (iv) or (v)
of Section 7(d)), the Seller will reimburse the Underwriters, upon demand, for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by the Underwriters in connection with the offering of the
Notes. Nothing contained in this Section 11 shall limit the recourse of the
Seller against the Underwriter.
12. Notices. All communications hereunder will be in writing and,
if sent to you, will be mailed, delivered or telegraphed and confirmed to the
Underwriter at ______________, Attention: ______________; and, if sent to the
Seller, will be mailed, delivered or telegraphed and confirmed to it at
DaimlerChrysler Wholesale Receivables LLC, 27777 Franklin Road, Southfield,
Michigan 48034.
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8, and
no other person will have any rights or obligations hereunder.
14. Applicable Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York.
15. Severability of Provisions. Any covenant, provision,
agreement or term of this Agreement that is prohibited or is held to be void
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
16. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the matters
and transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever relating to such matters and transactions.
24
17. Amendment. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
18. Headings. The headings in this Agreement are for the purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which shall together
constitute one instrument.
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 between DCWR, DCS and the
Underwriters in accordance with its terms.
Very truly yours,
DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC, by CHRYSLER
FINANCIAL RECEIVABLES
CORPORATION, a member
By:______________________________
Name:
Title:
DAIMLERCHRYSLER SERVICES NORTH
AMERICA LLC
By:______________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
25
[ ]
As Underwriter or as the Representative of
the Underwriters named in
Schedule I to the Terms Agreement
By:_______________________
Name:
Title:
26
EXHIBIT A
DAIMLERCHRYSLER MASTER OWNER TRUST
SERIES ____
FLOATING RATE AUTO LOAN ASSET BACKED NOTES
TERMS AGREEMENT
---------------
Dated:_________________
To: DaimlerChrysler Wholesale Receivables LLC
and DaimlerChrylser Services North America LLC
Re: Underwriting Agreement dated
Series Designation:
Underwriters:
- ------------
The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the purposes of the
above referenced Underwriting Agreement as such Underwriting Agreement is
incorporated herein and made a part hereof.
Terms of the Notes:
- ------------------
Initial Interest Price
Principal Amount Rate or Formula to Public
- -------------------------------- ------------------------------ -------------
[Class ]
[Class ]
[Class ]
Interest Payment Dates: _______________, _______________,
- ----------------------
______________ and _______________, commencing _____________ __, _____.
Note Ratings[s]:
- --------------
Indenture:
- ---------
Indenture Supplement:
- --------------------
Pooling and Servicing Agreement:
- -------------------------------
A-1
Series Supplement:
- -----------------
Purchase Price:
- --------------
The purchase price payable by the Underwriters for the Notes
covered by this Agreement will be the following percentage of the principal
amounts to be issued:
Per [Class ] Notes __________%
[Per Class [ ] Notes __________%]
[Per Class [ ] Notes __________%]
Registration Statement:
- ----------------------
Underwriting Commissions, Concessions and Discounts:
- ---------------------------------------------------
The Underwriters' discounts and commissions, the concessions
that the Underwriters may allow to certain dealers, and the discounts that
such dealers may reallow to certain other dealers, each expressed as a
percentage of the principal amount of the Notes, shall be as follows:
Underwriting Discounts Selling
and Concessions Concessions Reallowance
--------------------------- ----------------- -------------
[Class ] ___% ___% ___%
[[Class ] ___% ___% ___%]
[[Class ] ___% ___% ___%]
Closing Date: Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of
1934, as amended, the Underwriters, DCWR, DCS and the Issuer hereby agree that
the Closing Date shall be __________ __, 2000, __________ a.m., New York Time.
Location of Closing:
- -------------------
Payment for the Notes:
- ---------------------
Opinion Modifications:
- ---------------------
The Underwriters agree, severally and not jointly, subject to the terms and
provisions of the above referenced Underwriting Agreement which is
incorporated herein in its entirety and made a part hereof, to purchase the
respective principal amounts of the above referenced Series of Notes set forth
opposite their names on Schedule I hereto.
[ ]
[As Representative of the
A-2
Underwriters named in
Schedule I hereto]
By: _______________________
Name:
Title:
Accepted:
DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC, by CHRYSLER
FINANCIAL RECEIVABLES
CORPORATION, a member
By:______________________________
Name:
Title:
DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC
By:______________________________
Name:
Title:
A-3
SCHEDULE I
UNDERWRITERS
$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Auto Loan Asset Backed Notes, [Class ]
[$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Auto Loan Asset Backed Notes, [Class ]]
[$____________________ Principal Amount of Series ___ [___%] [Floating Rate]
Auto Loan Asset Backed Notes, [Class ]]
Principal Amount
----------------
[Names of Underwriters] $
----------------
$
================