EXHIBIT 1.1
DAIMLERCHRYSLER MASTER OWNER TRUST
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
Seller
DAIMLERCHRYSLER SERVICES NORTH AMERICA LLC
Servicer
UNDERWRITING AGREEMENT
(Standard Terms)
[Date]
[Underwriter(s)]
Dear Ladies and Gentlemen:
DaimlerChrysler Master Owner Trust, a Delaware statutory 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"),
proposes 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 June 1, 2002, as
supplemented by the Series [o] 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 indenture trustee (in such capacity, the "Indenture
Trustee"). The Issuer is operated pursuant to a Trust Agreement, dated as of
June 1, 2002 (as modified or amended from time to time, the "Trust
Agreement"), between DCWR, as Beneficiary, and Chase Manhattan Bank USA,
National Association, 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 (as hereinafter defined) 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, dated as of June 1, 2002 (as so supplemented
and as otherwise modified or amended from time to time, the
"Pooling and Servicing Agreement"), among DCWR, DaimlerChrysler Services North
America LLC, a Michigan limited liability company ("DCS"), as servicer (in
such capacity, the "Servicer"), and The Bank of New York, as trustee (in such
capacity, 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 an undivided interest 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 certain underwriters listed on
Schedule I to the applicable Terms Agreement, for whom [o] is acting as
representative. 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"; the representative of the Underwriters may
be referred to herein as "you" or "Representative," which, if the context
herein requires, shall include [o] in its capacity as Underwriter of any Notes
or as Representative. Notes sold to the Underwriters for which [o] 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 (this "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 or class of notes issued by the Issuer.
Upon the execution of the applicable Terms Agreement, DCWR agrees
with each of 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, severally and not jointly, to purchase
from the Issuer the respective principal amount of the Notes set forth
opposite the name of such Underwriter in the applicable Terms Agreement. The
Notes are to be purchased by the Underwriters at the purchase price set forth
in such Terms Agreement.
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2. Offering by the 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 (defined below).
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 1:00 p.m. 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 first 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,
against payment of the purchase price in immediately available funds drawn to
the order of DCWR, DCWR will cause the Issuer to deliver the Notes to the
respective accounts of the several Underwriters, 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 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-[o]) 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 Notes. 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 has filed with the Commission in a report on Form
8-K the Term Sheet dated [o] relating to the Notes (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 such 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
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modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest preliminary base prospectus
and preliminary prospectus supplement, if any, that have previously been
furnished to you) as the Seller has advised you, prior to the Execution Time,
will be included or made therein. If the Registration Statement contains the
undertaking specified by Regulation S-K Item 512(a), the Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means, with respect
to such registration statement, the date and time as of which 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
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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 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 pursuant to the Trust Agreement has vested 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 of the Indenture.
(f) The Issuer's assignment of the Collateral Certificate to the
Indenture Trustee pursuant to the Indenture has vested 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,
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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. 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.
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(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 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 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 Pooling
and Servicing Agreement.
(k) To the extent, if any, that the ratings provided with respect to
the Notes by the rating agency or agencies (each, a "Rating Agency") 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, the Collateral Certificate
or automobile or light duty truck 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 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(g) hereof, 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
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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 roles as federal tax counsel and special
ERISA counsel to the Issuer incurred as a result of providing the opinions
required by Section 7(h) hereof and the second sentence of Section 7(i)
hereof.
7. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters hereunder are subject to the performance by
DCWR and DCS of their respective 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 as of the Closing Date, of KPMG LLP, certified public
accountants (or such other independent accountants as may be named in the
applicable Terms Agreement) substantially in the form heretofore agreed and
otherwise in form and in substance satisfactory to you and counsel for the
Underwriters.
(c) Each of the Preliminary Prospectus, if any, and 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 your satisfaction.
(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; (iii) any suspension of trading
of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding
Corporation or the Seller on any exchange or in the over-the-counter market;
(iv) any banking moratorium declared by federal or New York authorities; (v)
any outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency or any change in the financial markets
if, in the judgment of the Underwriters, the effect of any such outbreak,
escalation, declaration, calamity, emergency or change makes it impractical or
inadvisable to proceed with
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completion of the sale of and payment for the Notes; or (vi) 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 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 the General Counsel of DCWR and DCS, addressed to you and the
Indenture Trustee dated the Closing Date, satisfactory in form and substance
to you and counsel for the Underwriters, 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 organizational power and authority to own its
properties and conduct its business, as presently conducted by it,
except where the failure to have such organizational power and authority
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs, or business prospects
of DCS and its subsidiaries taken as a whole, 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 relevant
times, and now has, the organizational power, authority and legal right
to acquire, own, sell and service the Receivables.
(ii) DCWR has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the State
of Delaware with full organizational power and authority to own its
properties and conduct its business, as presently conducted by it,
except where the failure to have such organizational power and authority
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs, or business prospects
of DCS and its subsidiaries taken as a whole, 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 relevant times, and now
has, the organizational power, authority and legal right to acquire, own
and sell the Receivables and the Collateral Certificate.
(iii) Each of DCS and DCWR is duly qualified to do business, is
in good standing and has obtained all necessary licenses and approvals
in each jurisdiction it does business in, except where the failure to be
so qualified or licensed (x) would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business
affairs, or business prospects of DCS and its subsidiaries taken as a
whole or (y) would not render any Receivable unenforceable by DCWR or
the CARCO Receivables Trustee on behalf of any Collateral
Certificateholder.
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(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 the Trust Agreement, has been duly issued and
entitled to the benefits and security afforded by the Pooling and
Servicing Agreement, subject to (w) bankruptcy, insolvency,
reorganization, moratorium, receivership, fraudulent conveyance, and
other similar laws now or hereafter in effect relating to creditors'
rights and remedies; (x) general principles of equity regardless of
whether considered and applied in a proceeding in equity or at law; (y)
the remedies 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; and (z) the effect of law or applicable public policy on
indemnification or contribution.
(v) 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 DCWR on behalf of the
Issuer, 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 to (w) bankruptcy, insolvency,
reorganization, moratorium, receivership, fraudulent conveyance, and
other similar laws now or hereafter in effect relating to creditors'
rights and remedies; (x) general principles of equity regardless of
whether considered and applied in a proceeding in equity or at law; (y)
the remedies 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; and (z) the effect of law or applicable public policy on
indemnification or contribution.
(vi) The Receivables Purchase Agreement has been duly
authorized, executed and delivered by U.S. Auto Receivables Company, a
predecessor of 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, subject to (w)
bankruptcy, insolvency, reorganization, moratorium, receivership,
fraudulent conveyance, and other similar laws now or hereafter in effect
relating to creditors' rights and remedies; (x) general principles of
equity regardless of whether considered and applied in a proceeding in
equity or at law; (y) the remedies 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; and (z) the effect of law or
applicable public policy on indemnification or contribution.
(vii) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by DCS and DCWR.
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(viii) The Receivables Purchase Agreement has been duly
authorized, executed, and delivered by Chrysler Credit Corporation
("CCC"), Chrysler Financial Corporation and Chrysler Financial Company
L.L.C. ("CFCLLC"), as predecessors of DCS, and the Pooling and Servicing
Agreement and the Administration Agreement have been duly authorized,
executed, and delivered by DCS and each constitutes the legal, valid and
binding obligation of DCS, enforceable against DCS in accordance with
its terms, subject to (w) bankruptcy, insolvency, reorganization,
moratorium, receivership, fraudulent conveyance, and other similar laws
now or hereafter in effect relating to creditors' rights and remedies;
(x) general principles of equity regardless of whether considered and
applied in a proceeding in equity or at law; (y) the remedies 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; and (z) the effect
of law or applicable public policy on indemnification or contribution.
(ix) Neither the merger of CCC into Chrysler Financial
Corporation and the assumption by Chrysler Financial Corporation of all
of CCC's obligations under the Receivables Purchase Agreement and the
Pooling and Servicing Agreement, nor the merger of Chrysler Financial
Corporation into CFCLLC and the assumption by CFCLLC of all of Chrysler
Financial Corporation's obligations under the Receivables Purchase
Agreement and the Pooling and Servicing Agreement, nor the merger of
CFCLLC into DCS and the assumption by DCS of all of CFCLLC's obligations
under the Receivables Purchase Agreement and the Pooling and Servicing
Agreement, nor the transfer of the Receivables and assignment of the
Collateral Security from DCS to DCWR pursuant to the Receivables
Purchase Agreement, nor the transfer of the Receivables and assignment
of the Collateral Security and the Receivables Purchase Agreement from
DCWR to the CARCO Receivables Trustee acting on behalf of the CARCO
Receivables Trust pursuant to the Pooling and Servicing Agreement, nor
the transfer of the Collateral Certificate to the Issuer pursuant to the
Trust Agreement, nor the grant of a security interest in the Collateral
Certificate to the Indenture Trustee pursuant to the Indenture, nor the
execution and delivery of this Agreement, the applicable Terms
Agreement, the Trust Agreement, the Pooling and Servicing Agreement, the
Receivables Purchase Agreement, and the Administration Agreement (such
agreements, excluding this Agreement and the applicable Terms Agreement,
being, collectively referred to in this subsection (f) as the "Basic
Documents") by DCWR or DCS, as applicable, nor the consummation of any
transactions contemplated in this Agreement, the applicable Terms
Agreement or any of the Basic Documents nor the fulfillment of the terms
thereof by DCS, DCWR or the Issuer, as the case may be, will conflict
with, or result in a material breach, violation, or acceleration of, or
constitute a default under, any term or provision of the Articles of
Organization or Operating Agreement, as applicable, of DCS or the
Certificate of Formation or the Limited Liability Company Agreement, as
applicable, of DCWR, or of any indenture or other material agreement or
material instrument to which DCS or DCWR 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 DCWR of any
court, regulatory body, administrative agency, or governmental body
having jurisdiction over either of them.
11
(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 this Agreement, the applicable Terms
Agreement, any of the Basic Documents, the Collateral Certificate, the
Indenture or the Notes, (2) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement, the applicable Terms
Agreement, any of the Basic Documents, the Indenture 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 applicable Terms Agreement, the
Receivables Purchase Agreement, the Pooling and Servicing Agreement or
the Administration Agreement or (4) that might materially and adversely
affect the performance by DCWR 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 Trust Agreement.
(xi) To the best of such counsel's knowledge and except as set
forth in the Prospectus, no material default exists and no event has
occurred which, with notice, lapse of time or both, would constitute a
material default in the due performance and observance of any term,
covenant or condition of any material agreement to which DCWR or DCS is
a party or by which either of them is bound, which material default has
or would have a material adverse effect on the financial condition,
earnings, prospects, business or properties of DCS 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) DCS contained in this Agreement, the applicable Terms Agreement, the
Receivables Purchase Agreement, the Pooling and Servicing Agreement or
the Administration 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.
(xiii) DCWR 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, subject to the rights of the Purchased Receivables Owners in the
Collateral Security (other than the Vehicles securing the Receivables).
Immediately prior to the transfer of the Receivables to the CARCO
Receivables Trustee on behalf of the CARCO Receivables Trust, 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 were perfected upon the filing of the
financing statement with the Secretary of State of the State of Michigan
and the Secretary of State of the State of New York and constituted a
perfected security interest therein, subject to the rights of the
Purchased Receivables Owners in the Collateral Security (other than the
Vehicles securing the Receivables). 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
12
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 or as may be qualified
in such opinion letter. However, a purchaser of the Receivables who
gives new value and takes possession of the instruments which evidence
the Receivables in the ordinary course of such purchaser's business may,
under certain circumstances, have priority over the interest of the
CARCO Receivables Trust in the Receivables, and a mechanic's lien, tax
lien, confiscation by government authorities under certain circumstances
or other government lien arising prior to the time Receivables are
conveyed to the CARCO Receivables Trust may also have priority over the
interest of the CARCO Receivables Trust in such Receivables.
(xiv) Subject to the above, if the transfer of the Receivables
and all of the related Collateral Security to the CARCO Receivables
Trust pursuant to the Pooling and Servicing Agreement constitutes a true
sale of such Receivables and Collateral Security to the CARCO
Receivables Trust:
(a) with respect to such Receivables and Collateral Security in
existence on the date hereof, such sale transfers all of the right,
title and interest of DCWR in and to such Receivables and Collateral
Security to the CARCO Receivables Trust, free and clear of any liens
now existing or hereafter created, but subject to the rights of DCWR
as holder of the CARCO Certificate; and
(b) with respect to such Receivables and Collateral Security
which come into existence after the date hereof, upon the creation of
such Receivables and Collateral Security and the subsequent transfer
of such Receivables and Collateral Security to the CARCO Receivables
Trust in accordance with the Pooling and Servicing Agreement and
receipt by DCWR of the consideration thereof required pursuant to the
Pooling and Servicing Agreement, such sale will transfer all of the
right, title and interest of DCWR in and to such Receivables and
Collateral Security to the CARCO Receivables Trust free and clear of
any liens but subject to the rights of DCWR as holder of the CARCO
Certificate;
and, in either case, no further action other than the filing of
continuation financing statements, as needed, will thereafter be
required under Michigan or federal law to protect the CARCO
Receivables Trust's ownership interest in the Receivables and the
Collateral Security against creditors of, or subsequent purchasers
from, DCWR. Financing statements have been filed in the offices of the
Secretaries of State of the States of Michigan and New York and,
accordingly, such security interest constitutes a perfected security
interest in such Receivables and Collateral Security and the proceeds
thereof.
(xv) Subject to the above, if the transfer of the Receivables
and Collateral Security to the CARCO Receivables Trust pursuant to the
Pooling and Servicing Agreement does not constitute a true sale of the
Receivables and the Collateral Security to the CARCO Receivables Trust,
then the Pooling and Servicing Agreement creates a valid security
interest in favor of the CARCO Receivables Trustee, for the
13
benefit of the Certificateholders and other Beneficiaries, in
DCWR's right, title and interest in and to the Receivables and the
Collateral Security and the proceeds thereof securing the obligation of
DCWR thereunder. Financing statements have been filed in the offices of
the Secretaries of State of the States of Michigan and New York and,
accordingly, such security interest constitutes a perfected security
interest in such Receivables and Collateral Security and the proceeds
thereof subject to no prior liens, enforceable as such against creditors
of, and subsequent purchasers from, DCWR, subject to (w) bankruptcy,
insolvency, reorganization, moratorium, receivership, fraudulent
conveyance, and other similar laws now or hereafter in effect relating
to creditors' rights and remedies; (x) general principles of equity
regardless of whether considered and applied in a proceeding in equity
or at law; (y) the remedies 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; and (z) the effect of law or applicable public policy on
indemnification or contribution.
(xvi) The Receivables are "chattel paper" as defined in the
Uniform Commercial Code.
(xvii) The Basic Documents and the Indenture conform in all
material respects with the descriptions thereof contained in the
Registration Statement and the Prospectus and any supplement thereto.
(xviii) The statements in the Base Prospectus and any supplement
thereto under the headings "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 Base Prospectus and any
supplement thereto under the headings "The Notes," "Sources of Funds to
Pay the Notes," "The Indenture," "Description of the Investor
Certificates Issued by the CARCO Receivables Trust," "Description of the
Receivables Purchase Agreement," "Summary of Series Terms," "Series
Provisions" and "Deposit and Application of Funds," insofar as such
statements constitute a summary of the Collateral Certificate, the
Indenture and the Basic Documents are 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 Indenture or any of the Basic Documents except such
filings (all of which have been made) with respect to the transfer of
the Receivables to DCWR pursuant to the Receivables Purchase Agreement,
the transfer of the Receivables to the CARCO Receivables Trustee acting
on behalf of the CARCO Receivables Trust pursuant to the Pooling and
Servicing Agreement, the transfer of the Collateral Certificate to the
Issuer pursuant to the Trust
14
Agreement, the grant of a security interest in the Collateral
Certificate to the Indenture Trustee pursuant to the Indenture, 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 security interest in the Vehicles.
(xxii) All actions required to be taken and all filings required
to be made under the Act and the Exchange Act prior to the sale of the
Certificates 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) DCS 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.
(xxvii) 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 or the
Prospectus, other than those disclosed therein.
(xxviii) 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 included as
exhibits thereto, other than those described or referred to therein or
included or incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct, and no material
default exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
15
indenture, mortgage, loan agreement, note, lease or other instrument so
described, referred to, included or incorporated by reference.
(xxix) 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.
(xxx) 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 (x) the Registration Statement
as of the date thereof (other than the financial statements and other
financial and statistical information contained therein, as to which
such counsel need not express any view) contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading or (y) the Prospectus or any amendment or supplement thereto
as of the respective dates thereof or the date of such opinion (other
than the financial statements and other financial and statistical
information contained therein, as to which such counsel need not express
any view) contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make
the statements therein not misleading.
(xxxi) The Issuer has been duly formed and is validly existing
as a statutory trust and is in good standing under the laws of the State
of Delaware, with full power and authority to execute, deliver and
perform its obligations under the Indenture, the Administration
Agreement and the Notes.
(xxxii) The Indenture has been duly authorized and, when duly
executed and delivered by DCWR on behalf of the Issuer, will constitute
the legal, valid and binding obligation of the Issuer, enforceable
against the Issuer in accordance with its terms, subject to (w)
bankruptcy, insolvency, reorganization, moratorium, receivership,
fraudulent conveyance, and other similar laws now or hereafter in effect
relating to creditors' rights and remedies; (x) general principles of
equity regardless of whether considered and applied in a proceeding in
equity or at law; (y) the remedies 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; and (z) the effect of law or
applicable public policy on indemnification or contribution.
16
(xxxiii) The Administration Agreement has been duly authorized
and, when duly executed and delivered by the Owner Trustee, will
constitute the legal, valid and binding obligation of the Issuer,
enforceable against the Issuer in accordance with its terms, subject to
(w) bankruptcy, insolvency, reorganization, moratorium, receivership,
fraudulent conveyance, and other similar laws now or hereafter in effect
relating to creditors' rights and remedies; (x) general principles of
equity regardless of whether considered and applied in a proceeding in
equity or at law; (y) the remedies 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; and (z) the effect of law or
applicable public policy on indemnification or contribution.
(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 counsel for the Underwriters relating to certain Michigan
tax matters.
(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 for 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 you and counsel
for the Underwriters, 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 any 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
17
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 the Receivables Purchase Agreement
and the Pooling and Servicing Agreement 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, [o], 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 Receivables Trustee and the Indenture Trustee, dated
the Closing Date, satisfactory in form and substance to you and counsel for
the Underwriters, to the effect that:
(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
Trustee under the Pooling and Servicing Agreement;
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the CARCO Receivables Trustee and
constitutes a legal, valid and binding obligation of the CARCO
Receivables Trustee, enforceable against the CARCO Receivables 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 Receivables Trustee has duly authenticated the
Collateral Certificate;
(iv) The execution and delivery of the Pooling and Servicing
Agreement by the CARCO Receivables Trustee and the performance by the
CARCO Receivables 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 Receivables Trustee or (y) the organization certificate or
by-laws of the CARCO Receivables 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 Receivables Trustee is required
18
in connection with the execution and delivery by the CARCO
Receivables Trustee of the Pooling and Servicing Agreement or the
performance by the CARCO Receivables Trustee thereunder;
(vi) To the best knowledge of such counsel, there is no action,
suit or proceeding pending or threatened against the CARCO Receivables
Trustee (as CARCO Receivables Trustee under the Pooling and Servicing
Agreement or in its individual capacity) before or by any governmental
authority that if adversely decided, would materially adversely affect
the ability of the CARCO Receivables Trustee to perform its obligations
under the Pooling and Servicing Agreement;
(vii) 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);
(viii) The Indenture Trustee has duly authenticated the Notes
on the Closing Date;
(ix) 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;
(x) 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; and
(xi) 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.
(m) You shall have received an opinion of Pryor Cashman Sherman &
Flynn LLP, counsel to the Owner Trustee, dated the Closing Date, satisfactory
in form and substance to you and counsel for the Underwriters, 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;
19
(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 has 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 its terms except that certain of such
obligations may be enforceable solely against the Trust Estate, and
except that such enforceability may be subject (a) to applicable
bankruptcy, insolvency, reorganization, and other similar laws
affecting the rights of creditors generally, and (b) to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iv) Each of the Administration Agreement 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); and
(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 such counsel's 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 such counsel's knowledge, without independent
investigation, of any judgment or order applicable to the Owner
Trustee.
20
(n) You 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 counsel for the Underwriters, to the
effect that:
(i) The Issuer has been duly formed and is validly existing in
good standing as a statutory trust under the Delaware Statutory Trust
Act, 12 Del.C. (ss.ss.)3801, et seq. (the "Statutory Trust 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 Beneficiary's ownership
interest in the Issuer (referred to in this subsection (n) as the
"Ownership Interest") 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 Statutory Trust Act, to execute, deliver and
perform its obligations under the Trust Documents and the Notes and to
issue the Ownership Interest and has duly authorized such agreements,
obligations and issuance;
(v) When the Ownership Interest is duly issued by the Issuer in
accordance with the Trust Agreement, the Ownership Interest will be
validly issued and entitled to the benefits of the Trust Agreement;
(vi) None of the execution, delivery and performance by the
Issuer of the Trust Documents or the Notes, the issuance of the
Ownership Interest or 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 Statutory Trust Act, no
creditor of the holder of the Owner Certificate shall have any right to
obtain possession of, or otherwise
21
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 Statutory Trust Act,
the Issuer may not be terminated or revoked by the Beneficiary, and the
dissolution, termination or bankruptcy of any holder of the Ownership
Interest 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
estate of the Issuer in order for the Issuer to qualify as a statutory
trust under the Statutory Trust 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 to or from the Issuer;
(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;
(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; and
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 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 each
Rating Agency.
22
(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 on the Closing Date with respect to any outstanding series of
notes issued by the Issuer.
DCWR will provide or cause to be provided to you 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
Base Prospectus, the Preliminary Prospectus Supplement (if any), the
Prospectus or the Collateral Materials, or any amendment, exhibit 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 it in
connection with investigating or defending any such loss, claim, damage,
liability or action as 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 any Underwriter 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, the Base Prospectus, the Preliminary Prospectus
Supplement (if any) 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 are the statements regarding the
Underwriters in the [second and fourth] paragraphs under the caption
"Underwriting" in the prospectus supplement
23
dated [o] 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 8 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 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 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), no Underwriter shall be
required to contribute any amount in excess of the underwriting discount or
commission applicable to the Notes purchased by such Underwriter hereunder and
under the applicable Terms Agreement. No person guilty of fraudulent
24
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 Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Seller, to
each officer of the Seller who has signed the Registration Statement and to
each person, if any, who controls the Seller within the meaning of the Act.
9. Defaults of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase the 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 9.
Nothing herein will relieve a defaulting Underwriter from liability for its
default.
10. No Bankruptcy Petition. Each Underwriter covenants and agrees
that, prior to the date which is one year and one day after the payment in
full of all securities issued by the Seller or by a trust for which the Seller
was the depositor which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or state bankruptcy or similar law.
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 each 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 any Underwriter 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 hereof and the respective obligations of the Seller and
the Underwriters pursuant to Section 8 hereof 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), (iv), (v) or (vi) of Section 7(d) hereof), the Seller will reimburse any
Underwriter, upon demand, for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by such Underwriter in
connection with the offering of the Notes. Nothing contained in this Section
11 shall limit the recourse of the Seller against the Underwriters.
25
12. Notices. All communications hereunder will be in writing and (i)
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to you at [o], Attention: [o]; (ii) if sent to the Seller, will be
mailed, delivered or telegraphed and confirmed to it at DaimlerChrysler
Wholesale Receivables LLC, 27777 Inkster Road, Farmington Hills, Michigan
48334, Attention: Assistant Secretary and (iii) if sent to DCS, will be
mailed, delivered or telegraphed and confirmed to it at DaimlerChrysler
Services North America LLC, 27777 Inkster Road, Farmington Hills, Michigan
48334, Attention: Assistant Secretary.
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
hereof, 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.
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. 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.
20. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which shall together
constitute one instrument.
26
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 several
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.
[REPRESENTATIVE]
As the Representative of the Several Underwriters
named in Schedule I to the Terms Agreement
By:______________________________
Name:
Title:
EXHIBIT A
DAIMLERCHRYSLER MASTER OWNER TRUST
FLOATING RATE AUTO DEALER LOAN ASSET BACKED NOTES,
SERIES [o]
TERMS AGREEMENT
Dated: [o]
To: DaimlerChrysler Wholesale Receivables LLC ("DCWR")
and DaimlerChrysler Services North America LLC ("DCS")
Re: Underwriting Agreement dated [o]
Series Designation: Series [o]
Underwriters: The Underwriters named on Schedule I attached hereto are
the "Underwriters" for the purpose of this Terms
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 Principal Amount.....$[o]
Interest Rate Formula........LIBOR (as defined in the
Prospectus Supplement)
plus [o]%
Legal Maturity Date.........[o].
Interest Payment Dates: The [o] of each month (or, if the [o] is not a
Business Day, the next succeeding Business Day)
commencing on [o].
A-1
Note Ratings: Moody's......................[Aaa]
Standard & Poor's............[AAA]
Fitch........................[AAA]
Indenture: As defined in the Underwriting Agreement.
Series [o] Indenture
Supplement: Dated as of [o].
Pooling and Servicing
Agreement: As defined in the Underwriting Agreement.
Registration Statement: 333-[o]
Purchase Price: The purchase price payable by each Underwriter for
the Notes covered by this Terms Agreement
shall be the following percentage of the
principal amount of the Notes purchased by
such Underwriter as set forth in Schedule
I attached hereto:
Per Note.....................[o]%
Underwriting Commissions, The Underwriters' discounts and commissions, the
Concessions and Discounts: 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 [o]%
and Concessions..................
Selling Concessions.........[o]%.
Reallowance.................[o]%.
A-2
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 [o], 10:00 a.m., New York City
time.
Location of Closing: Offices of:
Sidley Austin Brown & Wood LLP
787 Seventh Avenue
New York, New York 10019
Opinion Modifications: None.
A-3
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.
[REPRESENTATIVE]
As the Representative of the Several
Underwriters named in Schedule I hereto
By:______________________________
Name:
Title:
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-4
[SCHEDULE I]
UNDERWRITERS
$[o] Principal Amount of Floating Rate Auto Dealer Loan Asset Backed Notes,
Series [o]
[Underwriter(s)]............................................. $ [o]
-----
Total $[o]
=====
I-1