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)
[ ]
----------
[ ]
---------------
As Underwriter or as the Representative
of the Underwriters named in the
Terms Agreement
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 Amended and Restated Indenture, dated as
of December 16, 2004, as supplemented by the related Indenture Supplement
having the date stated in the applicable Terms Agreement (as so supplemented,
the "Indenture"), between the Issuer and The Bank of New York, as trustee (the
"Indenture Trustee"). The Issuer is governed by the Amended and Restated Trust
Agreement, dated as of December 16, 2004 (the "Trust Agreement"), between
DCWR, as Beneficiary, and Chase Manhattan Bank USA, National Association, as
owner trustee (the "Owner Trustee").
The Issuer's obligations under the Notes will be secured pursuant to
the Indenture by certain assets of the Issuer (collectively, the
"Collateral"). The Collateral consists primarily of a pool of wholesale (i.e.,
dealer floorplan) receivables (the "Receivables") generated from time to time
in the ordinary course of business in a portfolio of revolving financing
arrangements (the "Accounts") of DaimlerChrysler Services North America LLC
("DCS") meeting certain
eligibility criteria. The Receivables and related collateral security are sold
by DCS to DCWR pursuant to the Second Amended and Restated Receivables
Purchase Agreement, dated as of December 16, 2004 (the "Receivables Purchase
Agreement"), between DCS and DCWR, and then sold by DCWR to the Issuer
pursuant to the Sale and Servicing Agreement, dated as of December 16, 2004
(the "Sale and Servicing Agreement"), among DCWR as Seller, DCS as servicer
(in such capacity, the "Servicer"), and the Issuer.
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 (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 certain credit and/or cash flow enhancements in
the form 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 (each, an "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 Sale 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 Sale 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.
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
2
Representative is advisable and (ii) initially to offer the Notes as set forth
in the Prospectus (as hereinafter defined).
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 [10:00 a.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
Representative, for the respective accounts of the several Underwriters. The
Notes so delivered to the Representative will be registered in the name of
Cede & Co., as nominee of The Depository Trust Company, and will be in such
denominations as the Representative shall request in writing not later than
two full Business Days prior to the Closing Date. The Notes will be made
available for inspection by the Representative at the office of Sidley Xxxxxx
Xxxxx & Xxxx LLP not later than [10:00 a.m.], New York City time, on the
Business Day prior to the Closing Date. Any transfer taxes payable in
connection with the transfer of the Notes to the Underwriters shall be duly
paid by DCWR.
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. 333-120110) 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 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, or 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 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
3
(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
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
4
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 Sale and Servicing Agreement or
the Trust Agreement under the Trust Indenture Act or require registration of
DCWR 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 Receivables to the
Issuer pursuant to the Sale and Servicing Agreement has and 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 of the Indenture.
(f) The Issuer's assignment of the Collateral to the Indenture
Trustee pursuant to the Indenture has and 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 filing.
5
(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 compliance and the annual
independent certified public accountants' reports furnished to the Indenture
Trustee or the Owner Trustee pursuant to the Indenture and the Sale and
Servicing Agreement, as soon as such statements and reports are furnished to
the Indenture Trustee or the Owner Trustee.
6
(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 the Underwriters 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 Issuer's absolute
ownership of the Receivables and the Issuer's grant of a security interest in
the Receivables to the Indenture Trustee, and, from and after the Closing
Date, DCS shall not take any action inconsistent with the Issuer's or the
Indenture Trustee's interest in such Receivables, other than as permitted by
the Sale and Servicing Agreement and the Indenture.
(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
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 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 Xxxxxx Xxxxx & Xxxx LLP in its
role as special counsel to the Issuer incurred as a result of providing the
opinions required by Sections 7(h) and 7(j) hereof.
7. Conditions of the Obligations of the Underwriters. The several
obligations of the Underwriters hereunder are subject to the performance by
DCWR and DCS of
7
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 your counsel.
(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) hereof; 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 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 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.
8
(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 your counsel, to the effect that:
(i) DCS has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the State of
Michigan with full 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
Sale and Servicing Agreement, the Receivables Purchase Agreement, the
Administration Agreement and the Program Amendment 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 Sale and Servicing Agreement, the
Trust Agreement and the Program Amendment 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 to acquire and
hold the DCMOT 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, the Issuer or the
Indenture Trustee.
(iv) 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
9
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 Receivables Purchase Agreement, the Sale and Servicing
Agreement, the Trust Agreement and the Program Amendment Agreement have
been duly authorized, executed and delivered by DCWR, and each
constitutes 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.
(vi) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by DCS and DCWR.
(vii) The Receivables Purchase Agreement, the Sale and
Servicing Agreement, the Administration Agreement and the Program
Amendment 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.
(viii) Neither 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 Issuer pursuant to the Sale and Servicing Agreement (including the
transfer made on DCWR's behalf by the CARCO Trust Trustee as provided in
the Program Amendment Agreement), nor the grant of a security interest in
the Receivables, the Collateral Security, the Receivables Purchase
Agreement and the Sale and Servicing Agreement by the Issuer to the
Indenture Trustee pursuant to the Indenture, nor the execution and
delivery of this Agreement, the applicable Terms Agreement, the Trust
Agreement, the Sale and Servicing Agreement, the Receivables Purchase
Agreement, the Administration Agreement and the Program Amendment
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
10
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 the 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.
(ix) 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 DCMOT 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 Sale and Servicing Agreement, the
Administration Agreement or the Program Amendment 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
Sale and Servicing Agreement, the Trust Agreement or the Program
Amendment Agreement.
(x) 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.
(xi) 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 Sale and Servicing Agreement, the
Administration Agreement or the Program Amendment Agreement are other
than as stated therein or (y) DCWR contained in this Agreement, the
applicable Terms Agreement, the Receivables Purchase Agreement, the Sale
and Servicing Agreement, the Trust Agreement or the Program Amendment
Agreement are other than as stated therein.
(xii) DCWR is the sole owner of all right, title and interest
in, and has good and marketable title to, the Receivables and all of the
related Collateral Security
11
transferred by it to the Issuer pursuant to the Sale and Servicing
Agreement (including those Receivables and Collateral Security
transferred on DCWR's behalf by the CARCO Trust Trustee as provided in
the Program Amendment Agreement), subject to the rights of the Purchased
Receivables Owners in the Collateral Security (other than the Vehicles
securing the Receivables) and except for liens permitted under the
Restated Receivables Purchase Agreement. Immediately prior to the
transfer of the Receivables to the Issuer, 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 financing statement with
the Secretary of State of the State of Michigan 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) and except for liens permitted under
the Receivables Purchase Agreement. The assignment of the Receivables and
the Collateral Security, all documents and instruments relating thereto,
and all proceeds thereof, by DCWR to the Issuer pursuant to the Sale and
Servicing Agreement (including the assignment made on DCWR's behalf by
the CARCO Trust Trustee as provided in the Program Amendment Agreement),
vest in the Issuer 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 Sale and Servicing
Agreement or as may be qualified in this opinion. However, a purchaser of
the Receivables who gives new value and takes possession of the
instruments which evidence the Receivables in good faith in the ordinary
course of such purchaser's business and without knowledge that the
purchase violates the rights of the Issuer or its assigns may, under
certain circumstances, have priority over the interest of the Issuer 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 Issuer may
also have priority over the interest of the Issuer in such Receivables.
(xiii) Subject to the above, if the transfer of the Receivables
and all of the related Collateral Security by DCWR to the Issuer pursuant
to the Sale and Servicing Agreement (including the transfer made on
DCWR's behalf by the CARCO Trust Trustee as provided in the Program
Amendment Agreement) constitutes a true sale of the Receivables and the
Collateral Security to the Issuer: (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 Issuer, free and clear of any
liens now existing or hereafter created, but subject to the rights of
DCWR as holder of the DCMOT 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 Issuer in accordance with the Sale and Servicing
Agreement and receipt by DCWR of the consideration thereof required
pursuant to the Sale 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 Issuer, free and clear of any liens but
subject to the rights of DCWR as holder of the DCMOT Certificate; and, in
either case, no further action other than the filing of continuation
financing statements, as needed, will thereafter be required under
Michigan, New York, Delaware or federal law to protect the Issuer's
ownership interest in the
12
Receivables and the Collateral Security against creditors of, or
subsequent purchasers from, DCWR. A financing statement has been filed in
the office of the Secretary of State of the State of Delaware and,
accordingly, such security interest constitutes a perfected security
interest in such Receivables and Collateral Security and the proceeds
thereof.
(xiv) Subject to the above, if the transfer of the Receivables
and all of the related Collateral Security by DCWR to the Issuer pursuant
to the Sale and Servicing Agreement (including the assignment made on
DCWR's behalf by the CARCO Trust Trustee as provided in the Program
Amendment Agreement) does not constitute a true sale of the Receivables
and the Collateral Security to the Issuer, then the Sale and Servicing
Agreement creates a valid security interest in favor of the Issuer, 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. A financing statement has been filed in the office of
the Secretary of State of the State of Delaware 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.
(xv) The Receivables are "tangible chattel paper," "accounts"
or "payment intangibles," each as defined in the Uniform Commercial Code.
(xvi) 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.
(xvii) The statements in the Base Prospectus and any supplement
thereto under the headings "Risk Factors--Risk factors relating to the
receivables--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.
(xviii) The statements contained in the Base Prospectus and any
supplement thereto under the headings "The Notes," "The Indenture,"
"Description of the Sale and Servicing Agreement," "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 Indenture and the Basic Documents
are a fair summary of such documents.
13
(xix) 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 by DCWR to the Issuer pursuant to the Sale
and Servicing Agreement (including the transfer made on DCWR's behalf by
the CARCO Trust Trustee as provided in the Program Amendment Agreement),
the grant of a security interest in the Receivables to the Indenture
Trustee pursuant to the Indenture, and such other approvals as have been
obtained.
(xx) 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.
(xxi) All actions required to be taken and all filings required
to be made under the Act and the Exchange Act prior to the sale of the
Notes have been duly taken or made.
(xxii) The Sale and Servicing Agreement and the Trust Agreement
are not required to be qualified under the Trust Indenture Act, and the
Issuer is not required to be registered under the Investment Company Act.
(xxiii) The Indenture has been duly qualified under the Trust
Indenture Act.
(xxiv) 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.
(xxv) 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.
(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 or the
Prospectus, 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
14
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, indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to, included or incorporated by
reference.
(xxviii) The Registration Statement has become effective under
the Act, any required filing of the Base Prospectus, any preliminary Base
Prospectus, any Preliminary Prospectus Supplement and the Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b) and, to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act, the Exchange Act, the Trust
Indenture Act and the Rules and Regulations.
(xxix) Such counsel has examined the Registration Statement and
the Prospectus and nothing has come to such counsel's attention that
would lead such counsel to believe that (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.
(xxx) 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 Sale and Servicing Agreement, the
Indenture, the Administration Agreement, the Program Amendment Agreement,
the DCMOT Certificate and the Notes.
(xxxi) 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
15
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.
(xxxii) Each of the Sale and Servicing Agreement, the
Administration Agreement and the Program Amendment Agreement has been
duly authorized and, when duly executed and delivered by the Owner
Trustee 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.
In addition, you shall have received a reliance letter with respect
to any opinion that DCWR is required to deliver to any Rating Agency.
(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
Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, relating to certain Michigan tax matters.
(h) You shall have received an opinion addressed to you of Sidley
Xxxxxx Xxxxx & Xxxx LLP, in its capacity as special United States 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 United States federal income
tax law or legal conclusions with respect thereto, are correct in all material
respects. You shall have also received an opinion addressed to you of Sidley
Xxxxxx Xxxxx & Xxxx LLP, in its capacity as special ERISA counsel to the
Issuer, shall have delivered an opinion 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.
(i) You shall have received an opinion addressed to you of Sidley
Xxxxxx Xxxxx & Xxxx LLP, in its capacity as counsel to the Underwriters, dated
the Closing Date, with respect to the validity of the Notes and such other
related matters as you shall require, and the Seller shall have furnished or
caused to be furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(j) You shall have received an opinion or opinions of Sidley Xxxxxx
Xxxxx & Xxxx 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
16
relating to the characterization of the transfer of the Receivables to the
Issuer and the grant of a security interest in the Receivables to the
Indenture Trustee, and the Seller and DCS 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.
(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 Sale 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 Sale 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
[__________], 200[_], 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
Issuer, the Seller, DCS or DaimlerChrysler Corporation has occurred.
(l) You shall have received an opinion of Xxxxx, Xxxxxx & Xxxxxx
LLP, counsel to the Indenture Trustee, dated the Closing Date, satisfactory in
form and substance to you and your counsel, 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;
(ii) 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);
(iii) The Indenture Trustee has duly authenticated the Notes on
the Closing Date;
(iv) 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
(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
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
(vi) 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 Xxxxx Xxxxxxx Xxxxxxx &
Xxxxx LLP, 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 has been duly incorporated and is validly
existing as a national banking association in good standing under the
laws of the United States of America;
(ii) The Owner Trustee has full corporate trust power and
authority to enter into and perform its obligations under the Trust
Agreement and, on behalf of the Issuer, under the Sale and Servicing
Agreement and the Administration Agreement;
(iii) The execution and delivery of the Trust Agreement and,
on behalf of the Issuer, of the Sale and Servicing Agreement and the
Administration Agreement and the performance by the Owner Trustee of its
obligations under the Trust Agreement, the Sale and Servicing Agreement
and the Administration Agreement have been duly authorized by all
necessary corporate action of the Owner Trustee and each has been duly
executed and delivered by the Owner Trustee;
(iv) The Trust Agreement constitutes a valid and binding
agreement 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);
(v) The execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Issuer, of the Sale and Servicing
Agreement and the Administration Agreement do not require any consent,
approval or authorization of, or any registration or filing with, any
Delaware or United States federal governmental authority having
jurisdiction over the trust power of the Owner Trustee, other than those
consents, approvals or authorizations as have been obtained and the
filing of the Certificate of Trust with the Secretary of State of the
State of Delaware; and
18
(vi) The execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Issuer, the Sale and Servicing
Agreement and the Administration Agreement, and the performance by the
Owner Trustee of its obligations thereunder do not conflict with, result
in a breach or violation of or constitute a default under, the Articles
of Association or By-laws of the Owner Trustee.
(n) You shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger,
P.A., special Delaware counsel to the Issuer, dated the Closing Date, in form
and substance satisfactory to you and your counsel, to the effect that:
(i) The Issuer has been duly created and is validly existing in
good standing as a statutory trust under the Delaware Statutory Trust
Act, 12 Del.C. (xx.xx.)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 Sale and Servicing Agreement, the Indenture and the
Administration Agreement (collectively referred to in this subsection (n)
as the "Trust Documents"), to issue the Notes and the DCMOT 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 Statutory Trust Act, to execute, deliver and
perform its obligations under the Trust Documents and the Notes and to
issue the DCMOT Certificate and has duly authorized such agreements,
obligations and issuance;
(v) The DCMOT Certificate has been validly issued and is
entitled to the benefits of the Trust Agreement;
(vi) Neither the execution, delivery and performance by the
Issuer of the Trust Documents or the Notes, the issuance by the Issuer of
the DCMOT Certificate or the consummation by the Issuer of the
transactions contemplated thereby, requires the consent or approval of,
the withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency 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, the Notes or the DCMOT Certificate 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;
19
(viii) Under (xx.xx.)3805(b) of the Statutory Trust Act, no
creditor of the holder of the DCMOT 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 (xx.xx.)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 DCMOT
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 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 transfer of the DCMOT Certificate to or
from the Issuer;
(xii) The corpus of the Issuer is not subject to any personal
property or similar ad valorem tax imposed by the State of Delaware;
(xiii) The characterization of the Issuer for United States
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;
(xiv) There is no stamp, documentary or other excise tax
imposed by the State of Delaware upon the Notes;
(xv) 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
(xvi) The Beneficiary is the sole beneficial owner of the
Issuer.
(o) You shall have received opinions of Xxxxxxxx, Xxxxxx & Finger,
P.A., special Delaware counsel to DCWR and the Issuer, dated the Closing Date,
in form and substance satisfactory to you and your counsel, with respect to
security interest matters under the Uniform Commercial Code of the State of
Delaware.
(p) 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.
20
(q) No Event of Default 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 Event of Default 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 you, or cause you to be provided 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) 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 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 DCS 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 are the statements
regarding the Underwriters in the [__________] paragraph[s] under the caption
"Underwriting" in the prospectus supplement dated [__________] contained in
the Prospectus), and will reimburse any
21
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), the Underwriters shall
not be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Notes purchased by the Underwriters
hereunder and under the applicable Terms Agreement. 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.
22
(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 8 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 hereof. 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 United States 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 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 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 Underwriters.
12. Notices. All communications hereunder will be in writing and (i)
if sent to the Representative, will be mailed, delivered or telegraphed and
confirmed to the Representative at [__________________]; (ii) if sent to the
Seller, will be mailed, delivered or telegraphed and
23
confirmed to it at DaimlerChrysler Wholesale Receivables LLC, 00000 Xxxxxxx
Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, 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, 00000 Xxxxxxx Xxxx,
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, 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. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which shall together
constitute one instrument.
24
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.
[ ]
-------------------
As Underwriter or as the Representative of
the Underwriters named in
Schedule I to the Terms Agreement
By:______________________________
Name:
Title:
25
EXHIBIT A
DAIMLERCHRYSLER MASTER OWNER TRUST
[FLOATING RATE] AUTO DEALER LOAN ASSET BACKED NOTES
SERIES [o]
TERMS AGREEMENT
---------------
Dated: [__________]
To: DaimlerChrysler Wholesale Receivables LLC ("DCWR")
and DaimlerChrysler Services North America LLC ("DCS")
Re: Underwriting Agreement dated [__________]
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.........[__________]
Interest Rate Formula............[__________]
Legal Maturity Date..............[__________]
Price to Public per Note.........[__________]
Interest Payment Dates: The [15]th of each month (or, if the [15]th
is not a Business Day, the next succeeding
Business Day) commencing on [__________].
Note Ratings: [Xxxxx'x]........................[__________]
[Standard & Poor's]..............[__________]
[Fitch]..........................[__________]
Indenture: As defined in the Underwriting Agreement.
Series [o] Indenture
Supplement: [ ].
----------
Sale and Servicing
Agreement: As defined in the Underwriting Agreement.
Registration Statement: 333-120110
Purchase Price: The purchase price payable by the
Underwriters for the Notes covered by this
Terms Agreement shall be the following
percentage of the initial principal amount of
the Notes:
Per Note...........................[______]%
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 and
concessions........................[______]%
Selling concessions................[______]%
Reallowance........................[______]%
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
[____________], [10:00] a.m., New York City
time.
Location of Closing: Offices of:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
A-2
The Underwriter agrees, 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 all of the above referenced Series of
Notes.
[ ]
-------------------
[As Representative of the 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
[FLOATING RATE] AUTO DEALER LOAN ASSET BACKED NOTES
SERIES [o]
Principal Amount
of Series [o] Notes
---------------------
[Names of Underwriter].............................. $
[Names of Underwriter]..............................
---------------------
Total.................................. $
=====================
A-4
