Exhibit 1.1
DAIMLERCHRYSLER AUTO TRUST 200__-__
[____]% ASSET BACKED NOTES, CLASS A-2
[____]% ASSET BACKED NOTES, CLASS A-3
[____]% ASSET BACKED NOTES, CLASS A-4
[____% ASSET BACKED NOTES, CLASS B]
DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS LLC
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 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-2 Notes the Class A-3 Notes and the Class A-4 Notes,] the
"Offered Notes"), to the several Underwriters named in Schedule I hereto
(collectively, the "Underwriters"), for whom you are acting as representative
(the "Representative" or "you"). The Trust also will issue $[___________]
principal amount of its [____]% Asset Backed Notes, Class A-1 (the "Class A-1
Notes" and, together with the Offered Notes, the "Notes"), which Class A-1
Notes will be purchased by the Seller on the Closing Date (as defined below).
The assets of the Trust will include, among other things, a pool of motor
vehicle retail installment sale contracts (the "Receivables") and the related
collateral. The Receivables will be sold to the Trust by the Seller. The
Receivables will be serviced for the Trust by DCFS (in such capacity, the
"Servicer"). The Notes will be issued pursuant to an Indenture to be dated as
of ________, 200__ (as amended and supplemented from time to time, the
"Indenture"), between the Trust and [__________________], as indenture trustee
(the "Indenture Trustee").
[Simultaneously with the issuance and sale of the Notes as
contemplated herein, DaimlerChrysler Retail Receivables LLC, a Michigan
limited liability company (the "Company") will acquire the beneficial interest
in the Trust, pursuant to the Amended and Restated Trust Agreement to be dated
as of ________, 200__ (as amended and supplemented from time to time, the
"Trust Agreement"), among the Seller, the Company, and [_________________], as
owner trustee (the "Owner Trustee"). Such beneficial interest will be entitled
to the residual cash flow on the Receivables that is not required to be
applied to payments on the Notes and may be in the form of certificates issued
by the Trust.]
[Simultaneously with the issuance and sale of the Notes as
contemplated herein, the Trust will issue approximately $[_________] of its
Asset Backed Certificates (the "Certificates"), each representing a fractional
undivided ownership interest in the Trust, pursuant to the Amended and
Restated Trust Agreement to be dated as of ________, 200__ (as amended and
supplemented from time to time, the "Trust Agreement"), among the Seller,
DaimlerChrysler Retail Receivables LLC, a Michigan limited liability company
(the "Company"), and [_________________], as owner trustee (the "Owner
Trustee").]
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 Indenture or the Trust Agreement.
[Simultaneously with the issuance and sale of the Notes as contemplated
herein, the Trust will issue the Certificates referred to in the Trust
Agreement (the "Certificates") to the Company.]
2. Representations and Warranties of the Seller. The Seller
represents and warrants to, and agrees with, each Underwriter that:
(a) The Seller 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 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
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 Notes 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
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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.
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 Notes 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 Notes 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
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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
meaning of Rule 164(h)(2)), of the Offered Notes 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 Notes.
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
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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 Notes 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.
(d) This Agreement has been duly authorized, executed and delivered
by the Seller.
(e) The Seller's assignment and delivery of the 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 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
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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. [Reserved]
4. Purchase, Sale, and Delivery of the Offered Notes. On the basis of
the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Seller agrees to cause the
Trust to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust: (i) at a purchase price of [_______]%
of the principal amount thereof, the respective principal amount of the Class
A-2 Notes set forth opposite the name of such Underwriter in Schedule I
hereto, (ii) at a purchase price of [_______]% of the principal amount
thereof, the respective principal amount of the Class A-3 Notes set forth
opposite the name of such Underwriter in Schedule I hereto[,][ and] (iii) at a
purchase price of [_______]% of the principal amount thereof, the respective
principal amount of the Class A-4 Notes set forth opposite the name of such
Underwriter in Schedule I hereto[ and (iv) at a purchase price of [_______]%
of the principal amount thereof, the respective principal amount of the Class
B Notes, if any, set forth opposite the name of such Underwriter in Schedule I
hereto [(it being understood that only [____________] will purchase Class B
Notes)]]. Delivery of and payment for the Offered Notes 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 Offered Notes shall be
made against payment of the purchase price in immediately available funds
drawn to the order of the Seller. The Offered Notes to be so delivered will be
represented initially by one or more notes registered in the name of Cede &
Co., the nominee of The Depository Trust Company ("DTC"). The interests of
beneficial owners of the Offered Notes will be represented by book entries on
the records of DTC and participating members thereof. Definitive Notes will be
available only under limited circumstances.
5. Offering by Underwriters. It is understood that, after the
Registration Statement becomes effective, the Underwriters propose to offer
the Offered Notes for sale to the public (which may include selected dealers),
as set forth in the Prospectus.
6. Covenants of the Seller. The Seller covenants and agrees with each
of the Underwriters that:
(a) The Seller, subject to Section 6(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 Offered Notes 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 6(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 Offered Notes,
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
7
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.
(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 Offered Notes 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 Offered Notes, 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 6(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 fourteen months after
the Closing Date, the Seller will cause the Trust to make generally available
to holders of the Offered Notes an earnings statement of the Trust covering a
period of at least twelve months beginning after the Closing Date that will
satisfy the provisions of Section 11(a) of the Act.
(g) The Seller will arrange for the qualification of the Offered
Notes for sale under the laws of such jurisdictions in the United States as
you may reasonably designate and will continue such qualifications in effect
so long as required for the distribution.
(h) For a period from the date of this Agreement until the retirement
of the Offered Notes or until such time as the Underwriters shall cease to
maintain a secondary market in the Offered Notes, whichever occurs first, the
Seller will deliver to you the annual statements of compliance, 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
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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 Offered Notes is outstanding, the Seller
will furnish to you (i) as soon as practicable after the end of the fiscal
year all documents required to be distributed to holders of the Offered Notes
or filed with the Commission pursuant to the Exchange Act or any order of the
Commission thereunder and (ii) from time to time, any other information
concerning the Seller filed with any government or regulatory authority that
is otherwise publicly available, as you may reasonably request.
(j) On or before the Closing Date, DCFS 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, DCFS 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 ratings provided with respect to
the Offered Notes by the rating agency or agencies that initially rate the
Offered Notes are conditional upon the furnishing of documents or the taking
of any other actions by the Seller, the Seller shall furnish such documents
and take any such other actions.
(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, receivables generated pursuant to retail
automobile or light duty truck installment sale contracts in such a manner as
would constitute a public offering to persons in the United States.
7. Payment of Expenses. The Seller will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the preparation of this Agreement, (iii) the
preparation, issuance and delivery of the Offered Notes to the Underwriters,
(iv) the fees and disbursements of the Seller's counsel and accountants, (v)
the qualification of the Offered Notes under securities laws in accordance
with the provisions of Section 6(f), including filing fees and the fees and
disbursements of counsel for you in connection therewith and in connection
with the preparation of any blue sky or legal investment survey, (vi) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto 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 Offered Notes, (viii) any fees charged by rating
agencies for the rating of the Notes, (ix) the fees and expenses, if any,
incurred with respect to any filing with the National Association of
Securities Dealers, Inc., (x) the fees and expenses of Sidley Austin LLP in
its role as counsel to the Trust incurred as a result of providing
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the opinions required by Section 8(f) and the second sentence of Section 8(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.
8. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase and pay for the Offered Notes will be subject
to the accuracy of the representations and warranties on the part of the
Seller herein, to the accuracy of the statements of officers of the Seller
made pursuant to the provisions hereof, to the performance by the Seller of
its obligations hereunder and to the following additional conditions
precedent:
(a) 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 6(b) hereof, and as of the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Seller or you, shall be contemplated by the Commission or
by any authority administering any state securities or blue sky law.
(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 Offered
Notes or makes it impractical or inadvisable to market the Offered Notes; (ii)
any suspension or limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on such
exchange; (iii) any suspension of trading of any securities of DaimlerChrysler
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
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proceed with completion of the sale of and payment for the Offered Notes or
(vi) a material disruption has occurred in securities settlement or clearance
services in the United States.
(d) You shall have received an opinion of in-house counsel in the
office of the 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 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 Receivables.
(ii) The Company has been duly organized and is validly
existing as a limited liability company in good standing under the
laws of the State of Michigan with full power and authority to own
its properties and conduct its business as presently conducted by it
and to enter into and perform its obligations under the Trust
Agreement and the Purchase Agreement, and had at all times, and now
has, the power, authority and legal right to acquire, own, sell and
hold the excess cash flow from the Reserve Account and the Fixed
Value Payments.
(iii) Each of 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
Receivable unenforceable by the Seller, the Owner Trustee or the
Indenture Trustee.
(iv) The direction by the Seller to the Owner Trustee to
authenticate the Certificates has been duly authorized by the Seller
and, when the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the Trust Agreement
and delivered, the Certificates will be duly issued and entitled to
the benefits and security afforded by the Trust Agreement, subject as
to the enforcement of remedies (x) to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and (y) to general principles
of equity (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
(v) The direction by the Seller to the Indenture Trustee to
authenticate the Notes has been duly authorized by the Seller and,
when the Notes have been duly executed and delivered by the Owner
Trustee and when authenticated by the Indenture
11
Trustee in accordance with the Indenture and delivered and paid
for pursuant to this Agreement, the Notes will be duly issued and
entitled to the benefits and security afforded by the Indenture,
subject as to the enforcement of remedies (x) to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors' rights generally and (y) to general
principles of equity (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(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 has been duly authorized, executed and
delivered by DCFS.
(viii) The Purchase Agreement and the Trust Agreement have been
duly authorized, executed and delivered by the Company and are the
legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(ix) Neither the transfer of the Receivables from the Seller to
the Trust, nor the assignment of the Owner Trust Estate to the Trust,
nor the grant of the security interest in the Collateral to the
Indenture Trustee pursuant to the Indenture, nor the execution and
delivery of this Agreement, the Purchase Agreement, the Trust
Agreement, the Administration Agreement, or the Sale and Servicing
Agreement by 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 this Agreement, the
Purchase Agreement, the Trust Agreement, the Indenture, the
Administration Agreement or the Sale and Servicing Agreement (such
agreements, excluding this Agreement, being, collectively, the "Basic
Documents"), nor the fulfillment of the terms thereof by 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 DCFS or the Company, or of any
12
indenture or other material agreement or material instrument to which
DCFS 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 DCFS 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, 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.
(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 Trust Agreement, the Purchase Agreement or the
Sale and Servicing Agreement are other than as stated therein.
(xiii) The Seller is the sole owner of all right, title and
interest in, and has good and marketable title to, the Receivables
and the other property to be transferred by it to the Trust. The
assignment of the 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.
13
(xiv) Immediately prior to the transfer of the Receivables to
the Trust, the Seller's interest in the Receivables, the security
interests in the Financed Vehicles securing the 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 Receivables,
the security interests in the Financed Vehicles securing the
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
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 constitute matters of law or legal conclusions with
respect thereto, have been reviewed by such counsel and are correct
in all material respects.
(xix) The statements contained in the Prospectus and any
supplement thereto under the headings "Payments on the Securities",
"Form of Securities and Transfers" and "Principal Documents",
insofar as such statements constitute a summary of the Notes, the
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
14
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 Notes have been duly taken or made. [Neither the
Certificates nor [t][T]]he Class A-1 Notes are [not] required to be
registered under the Act.
(xxiii) The Trust Agreement is not required to be qualified
under the Trust Indenture Act and the Trust is not required to be
registered under the Investment Company Act.
(xxiv) The Indenture has been duly qualified under the Trust
Indenture Act.
(xxv) The Seller is not, and will not as a result of the offer
and sale of the Notes as contemplated in the Prospectus (and any
supplement thereto) and this Agreement become, an "investment
company" as defined in the Investment Company Act or a company
"controlled by" an "investment company" within the meaning of the
Investment Company Act.
(xxvi) To the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or threatened
that are required to be disclosed in the Registration Statement,
other than those disclosed therein.
(xxvii) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed
as exhibits thereto other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct, and no
default exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan
15
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, contained any untrue
statement of a material fact or omitted to state any material fact
16
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 in-house counsel in the
office of the 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) the Trust will not be characterized as an association (or a
publicly traded partnership) taxable as a corporation for Michigan
tax purposes; and
(ii) if the Notes are treated as debt for federal income tax
purposes, then for Michigan income and single business tax purposes,
the Notes will be characterized as debt.
(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 "Summary - Tax
Status" and "Certain Federal Income Tax Consequences" and in the Prospectus
Supplement under the heading "Federal Income Tax Consequences" accurately
describe the material federal income tax consequences to holders of the Notes.
(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 Notes and [the Certificates
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
17
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 have delivered an opinion with respect to the characterization of
the transfer of the Receivables and to the effect that the statements in the
Base Prospectus under the headings "Summary - ERISA Considerations" and "ERISA
Considerations", to the extent that they constitute statements of matters of
law or legal conclusions with respect thereto, have been prepared or reviewed
by such counsel and are correct in all material respects.
(h) You shall have received an opinion addressed to you and DCFS of
[__________________], counsel to the Indenture Trustee, dated the Closing Date
and satisfactory in form and substance to you and your counsel, to the effect
that:
(i) [__________________] [has been legally incorporated under
the laws of the State of [____________] and, based upon a certificate
of good standing issued by that State, is validly existing as a
banking corporation in good standing under the laws of that State][is
validly existing as a national banking association in good standing
under the laws of the United States of America], and has the
requisite entity power and authority to execute and deliver each of
the Indenture and the Administration Agreement and to perform its
obligations thereunder.
(ii) With respect to [__________________], the performance of
its obligations under each of each of the Indenture and the
Administration Agreement and the consummation of the transactions
contemplated thereby do not require any consent, approval,
authorization or order of, filing with or notice to any United States
federal [or State of [_________]] court, agency or other governmental
body under any United States federal [or State of [___________]]
statute or regulation that in our experience is normally applicable
to transactions of the type contemplated by each of the Indenture and
the Administration Agreement, except such as may be required under
the securities laws of any State of the United States or such as have
been obtained, effected or given.
(iii) With respect to [__________________], the performance of
its obligations under each of the Indenture and the Administration
Agreement and the consummation of the transactions contemplated
thereby will not result in any breach or violation of its certificate
of incorporation or bylaws.
(iv) With respect to [__________________], the performance of
its obligations under each of the Indenture and the Administration
Agreement and the consummation of the transactions contemplated
thereby will not result in any breach or violation of any United
States federal [or State of [___________]] statute or regulation that
in the experience of such counsel is normally applicable to
transactions of the type contemplated by each of the Indenture or the
Administration Agreement.
18
(v) With respect to [__________________], to the knowledge of
such counsel, there is no legal action, suit, proceeding or
investigation before any court, agency or other governmental body
pending or threatened (by written communication to it of a present
intention to initiate such action, suit or proceeding) against it,
which, either in one instance or in the aggregate, draws into
question the validity of, seeks to prevent the consummation of any of
the transactions contemplated by or would impair materially its
ability to perform its obligations under any of the Indenture or the
Administration Agreement.
(vi) Each of the Indenture and the Administration Agreement has
been duly authorized, executed and delivered by [_____________].
(vii) Each of the Indenture and the Administration Agreement
(to the extent that the laws of the State of New York are designated
therein as the governing law thereof), assuming the necessary
authorization, execution and delivery thereof by the parties thereto
(other than any party as to which we opine to that effect herein) and
the enforceability thereof against the other parties thereto, is a
valid and legally binding agreement under the laws of the State of
New York, enforceable thereunder in accordance with its terms against
[__________________].
(viii) The Notes have been duly authenticated and delivered by
the Indenture Trustee in accordance with the Indenture.
(i) 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 power and authority to execute,
deliver and perform its obligations under the Trust Agreement and to
consummate the transactions contemplated thereby.
(iii) The Owner Trustee has duly authorized, executed and
delivered the Trust Agreement, and the Trust Agreement constitutes a
legal, valid and binding obligation of the Owner Trustee, enforceable
against the Owner Trustee in accordance with its terms.
(iv) Neither the execution, delivery and performance by the
Owner Trustee of the Trust Agreement, nor the consummation of the
transactions contemplated thereby, is in violation of the articles of
association or bylaws of the Owner Trustee or of any law,
19
governmental rule or regulation of the State of Delaware or of the
federal laws of the United States of America governing the trust
powers of the Owner Trustee.
(v) Neither the execution, delivery and performance by the
Owner Trustee of the Trust Agreement, nor the consummation 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
under the laws of the State of Delaware or the federal laws of the
United States of America governing the trust powers of the Owner
Trustee.
(vi) [The Certificates have been duly executed and delivered by
the Owner Trustee as owner trustee and authenticating agent.]
(j) 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 _______, 200___, 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.
(k) 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.
(l) The Offered Notes shall have been rated "AAA" by each of Standard
& Poor's and Fitch and "Aaa" by Xxxxx'x. [The Class B Notes shall have been
rated at least ["A"] or its equivalent by each of Standard & Poor's, Fitch and
Xxxxx'x.]
20
(m) 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.
(n) On the Closing Date, the Certificates shall have been issued to
the Company.
(o) On the Closing Date, the Seller shall have purchased and fully
paid for all of the Class A-1 Notes.
The Seller will provide or cause to be provided to you such conformed
copies of such opinions, certificates, letters and documents as you reasonably
request.
9. Indemnification and Contribution.
(a) The Seller will indemnify and hold each Underwriter harmless
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement (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
21
to the Seller by such Underwriter through you specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Seller
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability that it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by the indemnified
party of the counsel appointed by the indemnifying party, the indemnifying
party will not be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Seller on the one hand and the Underwriters on the
other from the offering of the Offered Notes or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Seller on
the one hand and the Underwriters on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities as well as 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
22
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim that
is the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter (except as may be provided in the agreement
among Underwriters relating to the offering of the Offered Notes) shall be
required to contribute any amount in excess of the underwriting discount or
commission applicable to the Offered Notes purchased by such Underwriter
hereunder. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Seller under this Section shall be in
addition to any liability the Seller may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any of the
Underwriters within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Seller, to each officer of the
Seller who has signed the Registration Statement and to each person, if any,
who controls the Seller within the meaning of the Act.
10. Defaults of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase the Offered Notes hereunder on the
Closing Date and arrangements satisfactory to the Representative and the
Seller for the purchase of such Offered Notes by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Seller, except
as provided in Section 12. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
11. No Bankruptcy Petition. Each Underwriter covenants and agrees
that, prior to the date which is one year and one day after the payment in
full of all securities issued by the Seller or by a trust for which the Seller
was the depositor which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other Person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or state bankruptcy or similar law.
12. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Seller or the Company or any of their officers, and each of the
Underwriters set forth in or made pursuant to this Agreement or contained in
certificates of officers of the Seller submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation or
statement as to the results thereof made by or on behalf of any Underwriter or
the Seller or any of their respective representatives, officers or directors
or any controlling person, and will survive delivery of and payment for the
23
Offered Notes. If for any reason the purchase of the Offered Notes by the
Underwriters is not consummated, the Seller shall remain responsible for the
expenses to be paid or reimbursed by the Seller pursuant to Section 7 and the
respective obligations of the Seller and the Underwriters pursuant to Section
9 shall remain in effect. If for any reason the purchase of the Offered Notes
by the Underwriters is not consummated (other than because of a failure to
satisfy the conditions set forth in items (ii), (iv), (v) and (vi) of Section
8(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 Offered
Notes. Nothing contained in this Section 12 shall limit the recourse of the
Seller against the Underwriters.
13. 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 [___________________]; 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 9 will be
mailed, delivered or telegraphed and confirmed to such Underwriter. Any such
notice will take effect at the time of receipt.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 9, and
no other person will have any right or obligations hereunder.
15. Representation of Underwriters. You will act for the several
Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by you will be binding
upon all the Underwriters.
16. 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.
17. Applicable Law. This Agreement will be governed by, and construed
in accordance with, the laws of the State of New York.
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 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 Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
[__________________________________],
as Representative of the Several Underwriters
By:
--------------------------------------------
Name:
Title:
SCHEDULE I
Class A-2 Notes
Principal Amount of
the Class A-2 Notes
-------------------
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
Total.......................................................$ [_______]
===========
Class A-3 Notes
Principal Amount of
the Class A-3 Notes
-------------------
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
Total.......................................................$ [_______]
===========
Class A-4 Notes
Principal Amount of
the Class A-4 Notes
-------------------
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
Total.......................................................$ [_______]
===========
I-1
Class B Notes
Principal Amount of
the Class B Notes
-------------------
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
[________________]......................................................................................$[________]
Total.......................................................$ [_______]
I-2
