Exhibit 1.2
DAIMLERCHRYSLER AUTO TRUST 200_-_
_____% ASSET BACKED CERTIFICATES
DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS LLC
CERTIFICATE UNDERWRITING AGREEMENT
----------------------------------
____________, 200_
[Representative Underwriter]
as Representative of
the Several Underwriters
[Address of Representative Underwriter]
Ladies and Gentlemen:
1. Introductory. DaimlerChrysler Financial Services Americas LLC, a
Michigan limited liability company ("DCFS" or the "Seller"), proposes to cause
DaimlerChrysler Auto Trust 200_-_ (the "Trust") to issue and sell
$_______________ principal amount of its _____% Asset Backed Certificates (the
"Certificates") to the several Underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as representative (the
"Representative"). The assets of the Trust will include, among other things, a
pool of motor vehicle retail installment sale contracts (the "Standard
Receivables") and the right to receive Amortizing Payments with respect to
Fixed Value Receivables (the Standard Receivables and the Amortizing Payments
with respect to the Fixed Value Receivables are referred to herein
collectively as the "Receivables") and the related collateral. The Receivables
will be serviced for the Trust by DCFS (in such capacity, the "Servicer"). The
Certificates will be issued pursuant to the Amended and Restated Trust
Agreement to be dated as of ____________, 200_ (as amended and supplemented
from time to time, the "Trust Agreement"), among the Seller, as Depositor,
DaimlerChrysler Retail Receivables LLC, a Michigan limited liability company
(the "Company"), and [_____________], as owner trustee (the "Owner Trustee").
Simultaneously with the issuance and sale of the Certificates as
contemplated herein, the Trust will issue $_______________ principal amount of
its _____% Asset Backed Notes, Class A-1 (the "Class A-1 Notes"),
$_______________ principal amount of its Asset Backed Notes, Class A-2 (the
"Class A-2 Notes"), $_______________ principal amount of its _____% Asset
Backed Notes, Class A-3 (the "Class A-3 Notes")[,][ and] $_______________
principal amount of its _____% Asset Backed Notes, Class A-4 (the "Class A-4
Notes", and together with the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, the "Class A Notes")[, and $_______________ principal amount
of its _____% Asset Backed Notes, Class B (the "Class B Notes" and, together
with the Class A Notes,] the "Notes"). The Class A-2 Notes, Class A-3
Notes[,][ and] Class A-4 Notes[ and Class B Notes] (collectively, the "Offered
Notes") will be sold pursuant to an underwriting agreement dated the date
hereof (the "Note Underwriting
Agreement") between the Seller and the underwriters named in Schedule I
thereto. The Offered Notes and the Certificates are sometimes referred to
collectively herein as the "Offered Securities".
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Sale and Servicing Agreement to be dated as
of ____________, 200_ (as amended and supplemented from time to time, the
"Sale and Servicing Agreement"), between the Trust and DCFS, as Seller and
Servicer, or, if not defined therein, in the Trust Agreement or in the
Indenture to be dated as of ____________, 200_ (as amended and supplemented
from time to time, the "Indenture"), between the Trust and
[____________________], as indenture trustee (the "Indenture Trustee").
2. Representations and Warranties of the Seller. The Seller represents
and warrants to, and agrees with, each Underwriter that:
(a) The Seller has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (Registration No. 333-127963) on
Form S 3, including a related preliminary base prospectus and a preliminary
prospectus supplement, for the registration under the Securities Act of 1933,
as amended (the "Act"), of the offering and sale of asset backed notes and
certificates, including the Offered Securities. 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
has filed the Preliminary Prospectus (as hereinafter defined) with the
Commission. Promptly after execution and delivery of this Agreement, the
Seller will prepare and file with the Commission a final base prospectus and a
final prospectus supplement relating to the Offered Securities in accordance
with the provisions of Rule 430B and Rule 424(b). Any information included in
such base prospectus and prospectus supplement that was omitted from such
registration statement at the time it became effective but that is deemed to
be part of and included in such registration statement pursuant to Rule 430B
is referred to as "Rule 430B Information". Such registration statement, at any
given time, including the amendments thereto to such time, the exhibits and
any schedules thereto at such time, the documents incorporated by reference
pursuant to the Act at such time and documents otherwise deemed to be a part
thereof or included therein by the rules and regulations (the "Rules and
Regulations") of the Commission under the Act, is herein called the
"Registration Statement"; provided that references to the Effective Date (as
hereinafter defined) 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 Registration Statement.
The Registration Statement at the time it originally became effective is
herein called the "Original Registration Statement." "Base Prospectus" means
the base prospectus included in the Registration Statement, as amended at the
time of the filing of the Prospectus. "Preliminary Prospectus" means the base
prospectus and the preliminary prospectus supplement used in connection with
the offering of the Notes that omitted some of the Rule 430B Information.
"Prospectus" means the prospectus supplement to the Base Prospectus that is
first filed after the Execution Time pursuant to Rule 424(b), together with
the Base Prospectus, as amended at the time of such filing, including the
documents incorporated by reference therein pursuant to the Act at the time of
execution of this Agreement. "Prospectus Supplement" means the prospectus
supplement to the Base Prospectus included in the Prospectus.
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The Seller has included in the Registration Statement, as amended at the
Effective Date, all information required by the Act and the rules thereunder
to be included in the Prospectus with respect to the Notes and the offering
thereof. As filed, the Preliminary Prospectus includes all information with
respect to the Offered Securities and the offering thereof required by the Act
and the rules thereunder. As filed, the Prospectus shall include all
information with respect to the Offered Securities and the offering thereof
required by the Act and the rules thereunder and, except to the extent that
the Representative on behalf of the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Preliminary Prospectus) 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, "Applicable Time" shall have the meaning
referred to in Section 2(c) hereof. "Effective Time" means, with respect to
the Registration Statement, the date and time as of which the Registration
Statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission, or the earlier of the date of filing of
a prospectus required under Rule 424 deemed to be part of the Registration
Statement or the date and time of the first sale of Notes, and "Effective
Date" means the date of the Effective Time. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the parties
hereto. "Rule 158," "Rule 163," "Rule 164," "Rule 405," Rule 415," "Rule 424,"
"Rule 430B," "Rule 433" and "Regulation S-K" refer to such rules or
regulations under the Act. Any reference herein to the Registration Statement,
the Base Prospectus, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S 3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the Effective Date
of the Registration Statement or the issue date of the Base Prospectus, the
Preliminary Prospectus 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, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, the
Preliminary Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference or otherwise deemed by the Rules and
Regulations to be a part thereof or included therein. For purposes of this
Agreement, all references to the Registration Statement, the Preliminary
Prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
(b) The Seller meets the requirements for use of Form S-3 under the Act.
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). At the time of filing the
Original Registration Statement, at the earliest time thereafter that the
Seller or another offering participant made a bona fide offer (within the
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meaning of Rule 164(h)(2)), of the Offered Securities and at the date hereof,
the Seller was not and is not an "ineligible issuer," as defined in Rule 405
of the Rules and Regulations.
(c) The Original Registration Statement became effective on November 1,
2005, and any post-effective amendment thereto also has become effective. No
stop order suspending the effectiveness of the Registration Statement has been
issued under the Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Seller, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. The Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
Neither the Seller nor any of its affiliates has distributed or
otherwise used or will distribute or otherwise use any free writing prospectus
(as defined in Rule 405) relating to the Offered Securities.
At the respective times the Original Registration Statement and each
amendment thereto became effective, at each deemed effective date with respect
to the Underwriters pursuant to Rule 430B(f)(2) and at the Closing Time, the
Registration Statement complied and will comply in all material respects with
the applicable requirements of the Act, the Exchange Act, the Trust Indenture
Act and the respective rules and regulations of the Commission thereunder and
did not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; the Preliminary Prospectus, at the
Applicable Time, did not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and neither the Prospectus nor any amendment or supplement
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time, included or will include an untrue statement
of a material fact or omitted or will 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 does not make any representations or warranties as to the
information contained in or omitted from the Registration Statement, the
Preliminary Prospectus 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, the Preliminary Prospectus or
the Prospectus (or any supplement thereto).
When filed with the Commission, each Preliminary Prospectus (including
the prospectus and prospectus supplement filed as part of the Original
Registration Statement or any amendment thereto) complied when so filed in all
material respects with the Rules and Regulations, and the Preliminary
Prospectus and the Prospectus delivered to the Underwriter for use in
connection with the offering of the Offered Securities will, at the time of
such delivery, be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S T.
As used in this subsection and elsewhere in this Agreement, "Applicable
Time" means [____] a.m., New York City time, on [____________] or such other
time as agreed by the Seller and the Underwriters.
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(d) This Agreement has been duly authorized, executed and delivered by
the Seller.
(e) The Seller's assignment and delivery of the Standard Receivables and
the Fixed Value Receivables to the Trust will vest in the Trust all of the
Seller's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(f) The Trust's assignment of the Standard Receivables and the Fixed
Value Receivables to the Indenture Trustee pursuant to the Indenture will vest
in the Indenture Trustee, for the benefit of the Noteholders, a first priority
perfected security interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
(g) None of the Seller, the Company or anyone acting on behalf of the
Seller or the Company has taken any action that would require qualification of
the Trust Agreement under the Trust Indenture Act or require registration of
the Seller, the Company or the Trust under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), nor will the Seller or the Company
act, nor has either of them authorized, nor will either of them authorize, any
person to act in such a manner.
3. Purchase, Sale, and Delivery of the Certificates. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to cause the
Trust to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust, at a purchase price of __________% of
the principal amount thereof, the respective principal amount of the
Certificates set forth opposite the name of such Underwriter in Schedule I
hereto. Delivery of and payment for the Certificates shall be made at the
office of Sidley Austin LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on
____________, 200_ (the "Closing Date"). Delivery of the Certificates shall be
made against payment of the purchase price in immediately available funds
drawn to the order of the Seller. The Certificates to be so delivered will be
initially represented by one or more Certificates registered in the name of
Cede & Co., the nominee of The Depository Trust Company ("DTC"). The interests
of beneficial owners of the Certificates will be represented by book entries
on the records of DTC and participating members thereof. Definitive
Certificates will be available only under limited circumstances.
4. Offering by Underwriters. It is understood that, after the
Registration Statement becomes effective, the Underwriters propose to offer
the Certificates for sale to the public (which may include selected dealers),
as set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with each of
the Underwriters that:
(a) The Seller, subject to Section 5(b), will comply with the
requirements of Rules 424(b) and 430B and will notify the Underwriters
immediately, and confirm the notice in writing, of (i) the effectiveness of
any post-effective amendment to the Registration Statement or the filing of
any supplement or amendment to the Prospectus, (ii) the receipt of any
comments from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or any document
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incorporated by reference therein or otherwise deemed to be a part thereof
or for additional information, (iv) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any Preliminary Prospectus,
or of the suspension of the qualification of the Certificates for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes and (v) the happening of any event during
the period referred to in Section 5(d) hereof which, in the judgment of the
Seller, makes the Registration Statement or the Prospectus contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. The Seller will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain as soon
as possible the lifting thereof.
(b) Prior to the termination of the offering of the Certificates, the
Seller will not file any amendment to the Registration Statement or any
amendment, supplement or revision to either the Preliminary Prospectus
(including any prospectus included in the Original Registration Statement or
amendment thereto at the time it became effective) or to the Prospectus,
unless the Seller has furnished you a copy for your review prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which you shall reasonably object. Subject to the foregoing
sentence, the Seller will effect the filings required under Rule 424(b) in the
manner and within the time period required by Rule 424(b) (without reliance on
Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain
promptly whether the Preliminary Prospectus and the Prospectus transmitted for
filing under Rule 424(b) were each received for filing by the Commission and,
in the event that either was not, it will promptly file the Preliminary
Prospectus or the Prospectus, as applicable.
(c) The Seller has furnished or will deliver to the Underwriters and
counsel for the Underwriters, without charge, a signed copy of the Original
Registration Statement and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein or otherwise deemed to be a
part thereof) and a signed copy of all consents and certificates of experts,
and will also deliver to the Underwriters, without charge, a conformed copy of
the Original Registration Statement and of each amendment thereto (without
exhibits) for the Underwriters. The copies of the Original Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S
T.
(d) The Seller will deliver to the Underwriters, without charge, as many
copies of the Preliminary Prospectus and the Prospectus as the Underwriters
may reasonably request, and the Seller hereby consents to the use of such
copies for purposes permitted by the Act. The Seller will furnish to the
Underwriters, without charge, during the period when a prospectus is required
to be delivered under the Act or the Exchange Act, such number of copies of
the Prospectus as the Underwriters may reasonably request. The Prospectus and
any amendments or supplements thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S
T.
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(e) The Seller will comply with the Act and the Rules and Regulations,
the Exchange Act and the rules and regulations thereunder and the Trust
Indenture Act and the rules and regulations thereunder so as to permit the
completion of the distribution of the Certificates as contemplated in this
Agreement, the Basic Documents, the Registration Statement and the Prospectus.
If at any time when a prospectus is required by the Act to be delivered in
connection with sales of the Certificates, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel
for the Underwriters or counsel to the Seller, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such counsel,
at any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the Act or the
Rules and Regulations, the Seller will promptly prepare and file with the
Commission, subject to the review and approval provisions afforded to the
Underwriters described in Section 5(b) hereof, such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement, the Preliminary Prospectus or the Prospectus comply
with such requirements, the Seller will use its best efforts to have such
amendment or new registration statement declared effective as soon as
practicable and the Seller will furnish to the Underwriters, without charge,
such number of copies of such amendment or supplement as the Underwriters may
reasonably request. Any such filing shall not operate as a waiver or
limitation of any right of the Underwriters hereunder.
(f) As soon as practicable, but not later than sixteen months after the
Closing Date, the Seller will cause the Trust to make generally available to
Certificateholders an earnings statement of the Trust covering a period of at
least twelve months beginning after the Closing Date that will satisfy the
provisions of Section 11(a) of the Act.
(g) The Seller will arrange for the qualification of the Certificates
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 Certificates, or until such time as the Underwriters shall cease to
maintain a secondary market in the Certificates, whichever occurs first, the
Seller will deliver to you the annual statements of compliance, annual
assessment of compliance with servicing criteria, accountants' attestations in
respect of such assessments, and the annual independent certified public
accountants' reports furnished to the Indenture Trustee or the Owner Trustee
pursuant to the Sale and Servicing Agreement, as soon as such statements and
reports are furnished to the Indenture Trustee or the Owner Trustee.
(i) So long as any of the Certificates 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 Certificateholders or filed with the
Commission pursuant to the Exchange Act or any order of the Commission
thereunder and (ii) from time to time, any other information concerning the
Seller filed with any government or regulatory authority that is otherwise
publicly available, as you may reasonably request.
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(j) On or before the Closing Date, the Seller shall cause its computer
records relating to the Receivables to be marked to show the Trust's absolute
ownership of the Receivables, and from and after the Closing Date, the Seller
shall not take any action inconsistent with the Trust's ownership of such
Receivables, other than as permitted by the Sale and Servicing Agreement.
(k) To the extent, if any, that the rating provided with respect to the
Certificates by the rating agency or agencies that initially rate the
Certificates is 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 (other
than the Certificates) evidencing an ownership interest in, receivables
generated pursuant to retail automobile or light duty truck installment sale
contracts in such a manner as would constitute a public offering to persons in
the United States.
6. Payment of Expenses. The Seller will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the preparation of this Agreement, (iii) the
preparation, issuance and delivery of the Certificates to the Underwriters,
(iv) the fees and disbursements of the Seller's counsel and accountants, (v)
the qualification of the Certificates under securities laws in accordance with
the provisions of Section 5(f), including filing fees and the fees and
disbursements of counsel for you in connection therewith and in connection
with the preparation of any blue sky or legal investment survey, (vi) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto and of the
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 Certificates, (viii) any fees charged by rating
agencies for the rating of the Certificates, (ix) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc., (x) the fees and expenses of Sidley Austin LLP in
its role as counsel to the Trust incurred as a result of providing the
opinions required by Section 7(f) and the second sentence of Section 7(g)
hereof and (xi) the costs and expenses (including any damages or other amounts
payable in connection with legal or contractual liability) associated with the
reforming of any contracts for sale of the Offered Notes made by an
Underwriter caused by a breach of the representation contained in the third
paragraph of Section 2(c) hereof.
7. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Certificates will be subject to
the accuracy of the representations and warranties on the part of the Seller
herein, to the accuracy of the statements of officers of the Seller made
pursuant to the provisions hereof, to the performance by the Seller of its
obligations hereunder and to the following additional conditions precedent:
(a) Each of the Preliminary Prospectus and the Prospectus shall have
been filed with the Commission in the manner and within the applicable time
period required by Rule 424(b) without reliance on Rule 424(b)(8) and in
accordance with Section 5(b) hereof, and as of the
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Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Seller or you, shall be
contemplated by the Commission or by any authority administering any state
securities or blue sky law.
(b) On or prior to the Closing Date, you shall have received a letter,
dated as of the Closing Date, of KPMG LLP, certified public accountants,
substantially in the form of the drafts to which you have previously agreed
and otherwise in form and substance satisfactory to you and your counsel.
(c) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereto) and the Prospectus (exclusive
of any supplement thereto), there shall not have occurred (i) any change, or
any development involving a prospective change, in or affecting particularly
the business or properties of the Trust, the Seller, the Company,
DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of
the Underwriters, materially impairs the investment quality of the
Certificates or makes it impractical or inadvisable to market the
Certificates; (ii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange or any setting of minimum prices for
trading on such exchange; (iii) any suspension of trading of any securities of
DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the
Seller on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by federal or New York authorities; (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency or any change in the financial markets if,
in the judgment of the Underwriters, the effect of any such outbreak,
escalation, declaration, calamity, emergency or any change makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Certificates; or (vi) a material disruption has occurred in
securities settlement or clearance services in the United States.
(d) You shall have received an opinion of _______________, Vice
President and General Counsel of DCFS and the Company, addressed to you and
the Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, to the effect that:
(i) DCFS has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the State
of Michigan with full power and authority to own its properties and
conduct its business as presently conducted by it, and to enter into and
perform its obligations under this Agreement, the Note Underwriting
Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the
Trust Agreement and the Administration Agreement, and had at all times,
and now has, the power, authority and legal right to acquire, own, sell
and service the Standard Receivables and the Fixed Value Receivables.
(ii) The Company has been duly organized and is validly existing
as a limited liability company in good standing under the laws of the
State of Michigan with full power and authority to own its properties
and conduct its business as presently conducted by it, and to enter into
and perform its obligations under the Trust Agreement and the
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Purchase Agreement, and had at all times, and now has, the power,
authority and legal right to acquire, own, sell and hold the excess cash
flow from the Reserve Account and the Fixed Value Payments.
(iii) Each of DCFS and the Company is duly qualified to do
business and is in good standing, and has obtained all necessary
licenses and approvals, in each jurisdiction in which failure to qualify
or to obtain such licenses or approvals would render any Standard
Receivable or Fixed Value Receivable unenforceable by the Seller, the
Owner Trustee or the Indenture Trustee.
(iv) The direction by the Seller to the Owner Trustee to
authenticate the Certificates has been duly authorized by the Seller
and, when the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the Trust Agreement
and delivered and paid for pursuant to this Agreement, the Certificates
will be duly issued and entitled to the benefits and security afforded
by the Trust Agreement, subject as to the enforcement of remedies (x) to
applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights generally and (y) to general
principles of equity (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(v) The direction by the Seller to the Indenture Trustee to
authenticate the Notes has been duly authorized by the Seller, and when
the Notes have been duly executed and delivered by the Owner Trustee and
authenticated by the Indenture Trustee in accordance with the Indenture
and delivered and paid for pursuant to the Note Underwriting Agreement,
the Notes will be duly issued and entitled to the benefits and security
afforded by the Indenture, subject as to the enforcement of remedies (x)
to applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors' rights generally and (y) to
general principles of equity (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law).
(vi) The Purchase Agreement, the Trust Agreement, the Sale and
Servicing Agreement, and the Administration Agreement have been duly
authorized, executed and delivered by DCFS and are legal, valid and
binding obligations of DCFS enforceable against DCFS in accordance with
their terms, except (x) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights and (y) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(vii) This Agreement and the Note Underwriting Agreement have been
duly authorized, executed and delivered by the Seller.
(viii) The Purchase Agreement and the Trust Agreement have been
duly authorized, executed and delivered by the Company and are the
legal, valid and binding obligations of the Company enforceable against
the Company in accordance with their
10
terms, except (x) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and (y)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(ix) Neither the transfer of the Standard Receivables and the
Fixed Value Receivables from the Seller to the Trust, nor the assignment
of the Owner Trust Estate to the Trust, nor the grant of the security
interest in the Collateral to the Indenture Trustee pursuant to the
Indenture, nor the execution and delivery of the Note Underwriting
Agreement, this Agreement, the Purchase Agreement, the Trust Agreement,
the Sale and Servicing Agreement or the Administration Agreement by
DCFS, nor the execution and delivery of the Trust Agreement and the
Purchase Agreement by the Company, nor the consummation of any
transactions contemplated in the Note Underwriting Agreement, this
Agreement, the Purchase Agreement, the Trust Agreement, the Indenture,
the Administration Agreement or the Sale and Servicing Agreement (such
agreements, excluding the Note Underwriting Agreement and this
Agreement, being, collectively, the "Basic Documents"), nor the
fulfillment of the terms thereof by DCFS, the Company or the Trust, as
the case may be, will conflict with, or result in a material breach,
violation or acceleration of, or constitute a default under, any term or
provision of the articles of organization or operating agreement of the
Seller or the Company, or of any indenture or other material agreement
or material instrument to which the Seller or the Company is a party or
by which either of them is bound, or result in a violation of or
contravene the terms of any statute, order or regulation applicable to
the Seller or the Company of any court, regulatory body, administrative
agency or governmental body having jurisdiction over either of them.
(x) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry,
threatened before any court, administrative agency or other tribunal (1)
asserting the invalidity of the Trust or any of the Basic Documents, (2)
seeking to prevent the consummation of any of the transactions
contemplated by any of the Basic Documents or the execution and delivery
thereof, (3) that might materially and adversely affect the performance
by DCFS of its obligations under, or the validity or enforceability of,
the Note Underwriting Agreement, this Agreement, the Purchase Agreement,
the Trust Agreement, the Sale and Servicing Agreement, or the
Administration Agreement, or (4) that might materially and adversely
affect the performance by the Company of its obligations under, or the
validity or enforceability of, the Purchase Agreement or the Trust
Agreement.
(xi) To the best knowledge of such counsel and except as set forth
in the Prospectus (and any supplement thereto), no default exists and no
event has occurred which, with notice, lapse of time or both, would
constitute a default in the due performance and observance of any term,
covenant or condition of any material agreement to which the Seller or
the Company is a party or by which either of them is bound, which
default has or would have a material adverse effect on the financial
condition, earnings, prospects, business or properties of the Seller and
its subsidiaries, taken as a whole.
11
(xii) Nothing has come to such counsel's attention that would lead
such counsel to believe that the representations and warranties of (x)
the Company contained in the Purchase Agreement and the Trust Agreement
are other than as stated therein or (y) DCFS contained in this
Agreement, the Note Underwriting Agreement, the Trust Agreement or the
Sale and Servicing Agreement are other than as stated therein.
(xiii) The Seller is the sole owner of all right, title and
interest in, and has good and marketable title to, the Standard
Receivables and Fixed Value Receivables and the other property to be
transferred by it to the Trust. The assignment of the Standard
Receivables and Fixed Value Receivables, all documents and instruments
relating thereto and all proceeds thereof to the Trust, pursuant to the
Sale and Servicing Agreement, vests in the Trust all interests that are
purported to be conveyed thereby, free and clear of any liens, security
interests or encumbrances except as specifically permitted pursuant to
the Sale and Servicing Agreement or any other Basic Document.
(xiv) Immediately prior to the transfer of the Standard
Receivables and Fixed Value Receivables to the Trust, the Seller's
interest in the Standard Receivables and Fixed Value Receivables, the
security interests in the Financed Vehicles securing the Standard
Receivables and Fixed Value Receivables and the proceeds of each of the
foregoing was perfected and constituted a perfected first priority
interest therein.
(xv) The Indenture constitutes a grant by the Trust to the
Indenture Trustee of a valid security interest in the Standard
Receivables and Fixed Value Receivables, the security interests in the
Financed Vehicles securing the Standard Receivables and Fixed Value
Receivables and the proceeds of each of the foregoing, which security
interest will be perfected upon the filing of the UCC-1 financing
statements with the Secretary of State of the State of Delaware and will
constitute a first priority perfected security interest therein. No
filing or other action, other than the filing of the UCC-1 financing
statements with the Secretary of State of the State of Delaware referred
to above, is necessary to perfect and maintain the interest or the
security interest of the Indenture Trustee in the Standard Receivables
and Fixed Value Receivables, the security interests in the Financed
Vehicles securing the Receivables and the proceeds of each of the
foregoing against third parties.
(xvi) The Receivables are tangible or electronic chattel paper as
defined in the UCC.
(xvii) The Sale and Servicing Agreement, the Trust Agreement, the
Indenture, the Purchase Agreement and the Administration Agreement
conform in all material respects with the descriptions thereof contained
in the Prospectus (and any supplement thereto).
(xviii) The statements in the Prospectus under the headings "Risk
Factors -- Trusts May Not Have a Perfected Security Interest in Certain
Financed Vehicles" and "-- Insolvency of the Depositor May Result in
Delays, Reductions or Loss of Payments to Securityholders" and "Certain
Legal Aspects of the Receivables", to the extent they
12
constitute matters of law or legal conclusions with respect thereto, have
been reviewed by such counsel and are correct in all material respects.
(xix) The statements contained in the Prospectus and any
supplement thereto under the headings "Payments on the Securities",
"Form of Securities and Transfers" and "Principal Documents", insofar as
such statements constitute a summary of the Certificates, the Notes, the
Indenture, the Administration Agreement, the Purchase Agreement, the
Sale and Servicing Agreement and the Trust Agreement, constitute a fair
summary of such documents.
(xx) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated in the Basic Documents,
except such filings with respect to the transfer of the Receivables to
the Trust pursuant to the Sale and Servicing Agreement, the grant of a
security interest in the Collateral to the Indenture Trustee pursuant to
the Indenture and such other approvals as have been obtained and filings
as have been made.
(xxi) Such counsel is familiar with the Seller's standard
operating procedures relating to the Seller's acquisition of a perfected
first priority security interest in the vehicles financed by the Seller
pursuant to retail automobile and light duty truck installment sale
contracts in the ordinary course of the Seller's business. Assuming that
the Seller's standard procedures are followed with respect to the
perfection of security interests in the Financed Vehicles (and such
counsel has no reason to believe that the Seller has not followed or
will not continue to follow its standard procedures in connection with
the perfection of security interests in the Financed Vehicles), the
Seller has acquired or will acquire a perfected first priority security
interest in the Financed Vehicles.
(xxii) All actions required to be taken and all filings required
to be made under the Act and the Exchange Act prior to the sale of the
Certificates have been duly taken or made.
(xxiii) The Trust Agreement is not required to be qualified under
the Trust Indenture Act and the Trust is not required to be registered
under the Investment Company Act.
(xxiv) The Indenture has been duly qualified under the Trust
Indenture Act.
(xxv) The Seller is not, and will not as a result of the offer and
sale of the Certificates as contemplated in the Prospectus (and any
supplement thereto) and this Agreement or of the Notes as contemplated
in the Prospectus (and any supplement thereto) and the Note Underwriting
Agreement become, an "investment company" as defined in the Investment
Company Act or a company "controlled by" an "investment company" within
the meaning of the Investment Company Act.
(xxvi) To the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or threatened
that are required to be disclosed in the Registration Statement, other
than those disclosed therein.
13
(xxvii) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto, the descriptions thereof or references
thereto are correct, and no default exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument so described, referred to, filed or
incorporated by reference.
(xxviii) The Registration Statement has become effective under the
Act, any required filing of the Base Prospectus, any preliminary Base
Prospectus, any Preliminary Prospectus Supplement and the Prospectus,
and any supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b) (without
reference to Rule 424(b)(8)), 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 shall also state that such counsel has
examined the Original Registration Statement, the Registration
Statement, the Preliminary Prospectus and the Prospectus and nothing has
come to such counsel's attention that would lead such counsel to believe
that the Registration Statement (other than the financial statements and
other financial and statistical information contained or incorporated by
reference therein or omitted therefrom and the Form T-1, as to which
such counsel need not express any view), at the time the Original
Registration Statement became effective, contained any untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; that the Registration Statement, including the Rule 430B
Information (other than the financial statements and other financial and
statistical information contained or incorporated by reference therein
or omitted therefrom, as to which such counsel need not express any
view), at each deemed effective date with respect to the Underwriter
pursuant to Rule 430B(F)(2), contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; or that the
Prospectus (other than the financial statements and other financial and
statistical information contained or incorporated by reference therein
or omitted therefrom and the Form T-1, as to which such counsel need
express no view), at the date thereof and at the Closing Time, included
or includes any untrue statement of a material fact or omitted or omits
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. In addition, nothing has come to such counsel's
attention that would lead them to believe that the Preliminary
Prospectus (other than the financial statements and other financial and
statistical information contained or incorporated by reference therein
or omitted therefrom, as to which such counsel need express no view), as
of the Applicable Time,
14
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of circumstances under which they were made, not misleading.
(xxx) The Trust has been duly formed and is validly existing as a
statutory trust and is in good standing under the laws of the State of
Delaware, with full power and authority to execute, deliver and perform
its obligations under the Sale and Servicing Agreement, the Indenture,
the Administration Agreement, and the Notes and the Certificates.
(xxxi) The Indenture, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized and, when duly
executed and delivered by the Owner Trustee, will constitute the legal,
valid and binding obligations of the Trust, enforceable against the
Trust in accordance with their terms, except (x) the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and (y) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(e) You shall have received an opinion of ____________________, Vice
President and General Counsel of DCFS and the Company, addressed to you and
the Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to you and your counsel, to the effect that the statements in the
Base Prospectus under the heading "Certain Federal Income Tax Consequences --
Certain State Tax Consequences" and in the Prospectus Supplement under the
heading "Federal Income Tax Consequences" (to the extent relating to Michigan
tax consequences) accurately describe the material Michigan tax consequences
to holders of the Offered Securities.
(f) You shall have received an opinion addressed to you of Sidley Austin
LLP, in its capacity as federal tax counsel to the Trust, to the effect that
the statements in the Base Prospectus under the headings and "Summary -- Tax
Status" and "Certain Federal Income Tax Consequences" and in the Prospectus
Supplement under the heading "Federal Income Tax Consequences" (to the extent
relating to federal income tax consequences) accurately describe the material
federal income tax consequences to holders of the Offered Securities.
(g) You shall have received an opinion addressed to you of Sidley Austin
LLP, in its capacity as special counsel to the Underwriters, dated the Closing
Date, with respect to the validity of the Certificates and 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.
Sidley Austin LLP, in its capacity as special ERISA counsel to the Trust,
shall also 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 heading "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.
15
(h) You shall have received an opinion addressed to you and DCFS of
[___________________], counsel to the Owner Trustee, dated the Closing Date
and satisfactory in form and substance to you and your counsel, to the effect
that:
(i) The Owner Trustee is [duly incorporated and validly existing
in good standing as a banking corporation under the laws of the State of
Delaware][validly existing as a national banking association in good
standing under the laws of the United States of America].
(ii) The Owner Trustee has the full corporate trust power to
accept the office of owner trustee under the Trust Agreement and to
enter into and perform its obligations under the Trust Agreement and, on
behalf of the Trust, under the Indenture, the Sale and Servicing
Agreement and the Administration Agreement.
(iii) The execution and delivery of the Trust Agreement and, on
behalf of the Trust, of the Indenture, the Sale and Servicing Agreement,
the Administration Agreement, the Certificates and the Notes and the
performance by the Owner Trustee of its obligations under the Trust
Agreement, the Indenture, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized by all necessary
corporate action of the Owner Trustee and each has been duly executed
and delivered by the Owner Trustee.
(iv) The Trust Agreement, the Sale and Servicing Agreement, the
Indenture and the Administration Agreement constitute valid and binding
obligations of the Owner Trustee enforceable against the Owner Trustee
in accordance with their terms under the laws of the State of New York,
the State of Delaware and the federal law of the United States.
(v) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, of the Indenture, the Sale and
Servicing Agreement and the Administration Agreement do not require any
consent, approval or authorization of, or any registration or filing
with, any Delaware or United States federal governmental authority.
(vi) Each of the Certificates has been duly executed and delivered
by the Owner Trustee as owner trustee and authenticating agent. Each of
the Notes has been duly executed and delivered by the Owner Trustee, on
behalf of the Trust.
(vii) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture, the Trust Agreement or the Administration Agreement nor the
fulfillment of the terms thereof by the Owner Trustee will conflict
with, result in a breach or violation of, or constitute a default under
any law or the charter, bylaws or other organizational documents of the
Owner Trustee or the terms of any indenture or other agreement or
instrument known to such counsel to which the Owner Trustee or any of
its subsidiaries is a party or is bound, or any judgment, order or
decree known to such counsel to be applicable to the Owner Trustee or
any of its subsidiaries of any court, regulatory body, administrative
agency,
16
governmental body or arbitrator having jurisdiction over the
Owner Trustee or any of its subsidiaries.
(viii) To the knowledge of such counsel there is no action, suit
or proceeding pending or threatened against the Owner Trustee (as owner
trustee under the Trust Agreement or in its individual capacity) before
or by any governmental authority that, if adversely decided, would
materially adversely affect the ability of the Owner Trustee to perform
its obligations thereunder.
(ix) The execution, delivery and performance by the Owner Trustee
(as trustee under the Trust Agreement or in its individual capacity, as
the case may be) of the Sale and Servicing Agreement, the Indenture, the
Trust Agreement or the Administration Agreement will not subject any of
the property or assets of the Trust or any portion thereof to any lien
created by or arising under the Owner Trustee that is unrelated to the
transactions contemplated in such Agreements.
(i) You shall have received a certificate dated the Closing Date of any
of the Chairman of the Board, the President, the Executive Vice President, any
Vice President, the Treasurer, any Assistant Treasurer, any Assistant
Controller, the principal financial officer or the principal accounting
officer of each of the Seller and a member of the Company, in which such
officers shall state that, to the best of their knowledge after reasonable
investigation, (i) the representations and warranties of DCFS or the Company,
as the case may be, contained in the Trust Agreement, the Purchase Agreement
and the Sale and Servicing Agreement, as applicable, are true and correct in
all material respects, that DCFS or the Company, as the case may be, has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to the Closing Date,
that no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission and (ii) since ____________, except as may
be disclosed in the Prospectus (and any supplement thereto), no material
adverse change, or any development involving a prospective material adverse
change, in or affecting particularly the business or properties of the Trust,
DCFS or the Company has occurred.
(j) You shall have received evidence satisfactory to you that, on or
before the Closing Date, UCC-1 financing statements have been or are being
filed in the office of the Secretary of State of the States of Michigan and
Delaware reflecting the transfer of the interest of the Seller in the
Receivables and the proceeds thereof to the Trust and the grant of the
security interest by the Trust in the Receivables and the proceeds thereof to
the Indenture Trustee.
(k) The Certificates shall have been rated "__" by Standard & Poor's and
Fitch, "__" by Xxxxx'x Investors Service, Inc. [and "__" by DBRS].
(l) The issuance of the Notes and the Certificates shall not have
resulted in a reduction or withdrawal by any Rating Agency of the current
rating of any outstanding securities issued or originated by the Seller or any
of its affiliates.
(m) On the Closing Date, $_______________ aggregate principal amount of
the Offered Notes shall have been issued and sold.
17
(n) On the Closing Date, the Seller shall have purchased and fully paid
for all of the Class A-1 Notes.
The Seller will provide or cause to be provided to you such conformed
copies of such opinions, certificates, letters and documents as you reasonably
request.
8. Indemnification and Contribution.
(a) The Seller will indemnify and hold each Underwriter harmless against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement (including the Rule 430B Information), the Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that the Seller will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information relating to any
Underwriter furnished to the Seller by such Underwriter through you
specifically for use therein.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Seller against any losses, claims, damages or liabilities to
which the Seller may become subject, under the Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement (including the Rule 430B Information), the Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information relating
to such Underwriter furnished to the Seller by such Underwriter through you
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Seller in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability that it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be
18
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and
approval by the indemnified party of the counsel appointed by the indemnifying
party, the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Seller on the one hand and the Underwriters on the other from the offering of
the Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Seller on the one hand and the Underwriters on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Seller on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Seller bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Seller or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim that is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter (except
as may be provided in the agreement among Underwriters relating to the
offering of the Certificates) shall be required to contribute any amount in
excess of the underwriting discount or commission applicable to the
Certificates purchased by such Underwriter hereunder. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Seller under this Section shall be in
addition to any liability that the Seller may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
of the Underwriters within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Seller, to each officer of the
Seller who has signed the Registration Statement and to each person, if any,
who controls the Seller within the meaning of the Act.
19
9. Defaults of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase the Certificates hereunder on the Closing
Date and arrangements satisfactory to the Representative and the Seller for
the purchase of such Certificates by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on
the part of any nondefaulting Underwriter or the Seller, except as provided in
Section 11. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
10. No Bankruptcy Petition. Each Underwriter covenants and agrees that,
prior to the date which is one year and one day after the payment in full of
all securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized statistical
rating organization, it will not institute against, or join any other Person
in instituting against, the Seller any bankruptcy, reorganization,
arrangement, insolvency 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 the Company or any of their officers, and each of the
Underwriters set forth in or made pursuant to this Agreement or contained in
certificates of officers of the Seller submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation or
statement as to the results thereof made by or on behalf of any Underwriter or
the Seller or any of their respective representatives, officers or directors
or any controlling person, and will survive delivery of and payment for the
Certificates. If for any reason the purchase of the Certificates by the
Underwriters is not consummated, the Seller shall remain responsible for the
expenses to be paid or reimbursed by the Seller pursuant to Section 6 and the
respective obligations of the Seller and the Underwriters pursuant to Section
8 shall remain in effect. If for any reason the purchase of the Certificates
by the Underwriters is not consummated (other than because of a failure to
satisfy the conditions set forth in items (ii), (iv) and (v) of Section 7(c)),
the Seller will reimburse any Underwriter, upon demand, for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
it in connection with the offering of the Certificates. 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, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representative at [Address of Representative Underwriter]; if
sent to the Seller, will be mailed, delivered or telegraphed, and confirmed to
it at DaimlerChrysler Financial Services Americas LLC, 00000 Xxxxxxx Xxxx,
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, Attention: Assistant Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8 will be
mailed, delivered or telegraphed and confirmed to such Underwriter. Any such
notice will take effect at the time of receipt.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8, and
no other person will have any right or obligations hereunder.
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14. Representation. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any
action under this Agreement taken by you will be binding upon all the
Underwriters.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
16. Applicable Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among the Seller and the several
Underwriters in accordance with its terms.
Very truly yours,
DAIMLERCHRYSLER FINANCIAL SERVICES
AMERICAS LLC
By:
--------------------------------
Name:
Title:
The foregoing Certificate Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
[Representative Underwriter]
as Representative of the Several Underwriters
By:
-------------------------------------------
Name:
Title:
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SCHEDULE I
Principal Amount
Certificate Underwriters of Certificates
------------------------ ----------------
[Representative Underwriter]..................................$_______________
[Underwriters]................................................$_______________
Total...................................................$_______________
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