Attached files
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8-K - FORM 8-K - Chrysler Financial Auto Securitization Trust 2009-B | y80511e8vk.htm |
EX-5.1 - EX-5.1 - Chrysler Financial Auto Securitization Trust 2009-B | y80511exv5w1.htm |
EX-8.1 - EX-8.1 - Chrysler Financial Auto Securitization Trust 2009-B | y80511exv8w1.htm |
Exhibit 1.1
CHRYSLER FINANCIAL AUTO SECURITIZATION TRUST 2009-B
1.15% ASSET BACKED NOTES, CLASS A-2
2.94% ASSET BACKED NOTES, CLASS B
2.94% ASSET BACKED NOTES, CLASS B
CHRYSLER FINANCIAL SERVICES AMERICAS LLC
UNDERWRITING AGREEMENT
November 19, 2009
Barclays Capital Inc.,
as an Underwriter and Representative of the
several Underwriters of the Class A-2 Notes
identified on Schedule I hereto, and as sole
Underwriter of the Class B Notes
745 Seventh Avenue, 5th Floor
New York, New York 10019
as an Underwriter and Representative of the
several Underwriters of the Class A-2 Notes
identified on Schedule I hereto, and as sole
Underwriter of the Class B Notes
745 Seventh Avenue, 5th Floor
New York, New York 10019
Ladies and Gentlemen:
1. Introductory. Chrysler Financial Services Americas LLC, a Michigan limited
liability company (CFSA or the Depositor), proposes to cause Chrysler Financial Auto
Securitization Trust 2009-B (the Trust) to issue and sell $279,500,000 principal amount of its
1.15% Asset Backed Notes, Class A-2 (the Class A-2 Notes) to the several Underwriters identified
on Schedule I hereto (collectively, the Underwriters), for whom you are acting as Representative
(the Representative) and $54,600,000 principal amount of its 2.94% Asset Backed Notes, Class B
(the Class B Notes and, together with the Class A-2 Notes, the Offered Notes) to you, as the
Underwriter. The Trust also will issue $557,000,000 principal amount of its 0.30565% Asset Backed
Notes, Class A-1 (the Class A-1 Notes), and Asset Backed Notes, Class C (the Class C Notes and,
together with the Offered Notes and the Class A-1 Notes, the Notes) which Class A-1 Notes and
Class C Notes will be purchased by the Depositor 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 Depositor. The Receivables will be serviced for the Trust by CFSA (in such capacity,
the Servicer). The Notes will be issued pursuant to an Indenture to be dated as of November 24,
2009 (as amended and supplemented from time to time, the Indenture), between the Trust and Wells
Fargo Bank, National Association, as indenture trustee (the Indenture Trustee).
Simultaneously with the issuance and sale of the Notes as contemplated herein, Chrysler Residual
Holdco LLC, a Delaware limited liability company (the Company), will acquire the beneficial
interest in the Trust, pursuant to the Purchase Agreement to be dated as of November 24, 2009 (as
amended and supplemented from time to time, the Purchase Agreement) between the Depositor and the
Company. Such beneficial interest shall be in the form of certificates issued by the Trust.
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 November 24, 2009 (as amended and supplemented
from time to time, the Sale and Servicing Agreement), among the Trust, CFSA, as Seller and
Servicer, and Wells Fargo Bank, National Association, as backup servicer (the Backup Servicer)
or, if not defined therein, in the Indenture or the Second Amended and Restated Trust Agreement to
be dated as of November 24, 2009 (as amended and supplemented from time to time, the Trust
Agreement), between the Depositor and BNY Mellon Trust of Delaware (formerly known as BNYM
(Delaware)), as owner trustee (the Owner Trustee).
At or prior to the time when sales to purchasers of the Offered Notes were first made by the
Underwriters, which was approximately 3:12 p.m. on November 19, 2009 (the Time of Sale), the
Depositor had prepared the following information (collectively, the Time of Sale Information):
the Preliminary Prospectus Supplement dated November 16, 2009 to the Prospectus dated November 16,
2009, together with such Prospectus (as defined below) (together with the information referred to
under the caption Static Pool Data therein regardless of whether it is deemed a part of the
Registration Statement (as defined below) or Prospectus, the Preliminary Prospectus), considered
together with the amount and price to the public of the Offered Notes on the second page of the
Final Term Sheet. If, at or subsequent to the Time of Sale and prior to the Closing Date (as
defined below), such information included an untrue statement of a material fact or omitted 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, and as a result investors in the Offered
Notes may terminate their old Contracts of Sale (within the meaning of Rule 159 under the
Securities Act of 1933, as amended (the Securities Act)) for any Offered Notes and the
Underwriters enter into new Contracts of Sale with investors in the Offered Notes, then Time of
Sale Information will refer to the information conveyed to investors at the time of entry into the
first such new Contract of Sale, in an amended Preliminary Prospectus approved by the Depositor and
the Representative that corrects such material misstatements or omissions (a Corrected
Prospectus) and Time of Sale will refer to the time and date on which such new Contracts of Sale
were entered into.
2. Representations and Warranties of the Depositor. The Depositor represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (No. 333-138140) relating to asset backed notes and
certificates, including the Offered Notes, has been filed by Depositor with the Securities and
Exchange Commission (the Commission) and has become effective on November 15, 2006, and is still
effective as of the date hereof under the Securities Act. The Depositor proposes to file with the
Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Securities Act (the Rules and Regulations) a
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prospectus supplement dated November 19, 2009 (together with information referred to under the
caption Static Pool Data therein regardless of whether it is deemed a part of the Registration
Statement or Prospectus, the Prospectus Supplement) to the prospectus dated November 16, 2009,
relating to the Offered Notes and the method of distribution thereof. Copies of such registration
statement, any amendment or supplement thereto, such prospectus, the Preliminary Prospectus and the
Prospectus Supplement have been delivered to you. Such registration statement, including exhibits
thereto, and such prospectus, as amended or supplemented to the date hereof, and as further
supplemented by the Prospectus Supplement, are hereinafter referred to as the Registration
Statement and the Prospectus, respectively. The conditions to the use of a registration
statement on Form S-3 under the Securities Act have been satisfied. The Depositor has filed the
Preliminary Prospectus and it has done so within the applicable period of time required under the
Securities Act and the Rules and Regulations.
(b) The Registration Statement, at the time it became effective, any post-effective amendment
thereto, at the time it became effective, and the Prospectus, as of the date of the Prospectus
Supplement, complied and on the Closing Date will comply in all material respects with the
applicable requirements of the Securities Act and the Rules and Regulations and the Trust Indenture
Act of 1939, as amended (the Trust Indenture Act), and the rules and regulations of the
Commission thereunder. The Registration Statement, as of the applicable effective date as to each
part of the Registration Statement pursuant to Rule 430B(f)(2) and any amendment thereto, did not
include any untrue statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading. The
Preliminary Prospectus, as of its date and as of the Time of Sale, did not contain an untrue
statement of a material fact and did not 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. The Prospectus, as of the date of the Prospectus Supplement and as of the Closing
Date, does not and will not contain any untrue statement of a material fact and did not and will
not omit to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The representations and
warranties in the three preceding sentences do not apply to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) of the
Indenture Trustee under the Trust Indenture Act or (ii) that information contained in or omitted
from the Registration Statement or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with the Underwriters Information (as defined below). The
Indenture has been qualified under the Trust Indenture Act. Underwriters Information consists
solely of the five sentences after the first table under the caption Underwriting in the
Preliminary Prospectus Supplement and the five sentences after the first table and the table
following such five sentences under the caption Underwriting in the Prospectus Supplement.
(c) The Time of Sale Information, at the Time of Sale, did not, and at the Closing Date will
not, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; and each Free Writing Prospectus (as defined below)
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disseminated by the Depositor does not conflict with the information contained in any of the
documents comprised in the Time of Sale Information; provided that the Depositor makes no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with the Underwriters Information.
(d) This Agreement has been duly authorized, executed and delivered by the Depositor.
(e) The Notes have been duly authorized and, when issued and delivered pursuant to this
Agreement or any other agreement, as applicable, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding obligations of the Trust
entitled to the benefits provided by the Indenture, under which they are to be issued, which is
substantially in the form filed as an exhibit to the Registration Statement; the Indenture has been
duly authorized and duly qualified under the Trust Indenture Act and, when executed and delivered
by the Trust and the Trustee, will constitute a valid and legally binding instrument, enforceable
in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors rights and to general
equity principles; and the Notes and the Indenture will conform to the descriptions thereof in the
Time of Sale Information and the Prospectus.
(f) The Depositors assignment and delivery of the Receivables to the Trust will vest in the
Trust all of the Depositors right, title and interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
(g) The Trusts 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.
(h) None of the Depositor, the Company or the Trust is required to be registered as an
investment company under the Investment Company Act of 1940, as amended (the Investment Company
Act); and none of the Depositor, the Company or anyone acting on behalf of the Depositor or the
Company has taken any action that would require qualification of the Trust Agreement under the
Trust Indenture Act, nor will the Depositor or the Company act, nor has either of them authorized,
nor will either of them authorize, any person to act in such a manner.
(i) The Depositor is not, and on the date on which the first bona fide offer of the Offered
Notes was made was not, an ineligible issuer, as defined in Rule 405 under the Securities Act.
(j) A new registration statement on Form S-3 (No. 333-163025) relating to the asset backed
notes and certificates described in the Registration Statement has been filed by Depositor with the
Commission pursuant to Rule 415(a)(6) of the Rules and Regulations prior to the end of the
three-year period described in Rule 415(a)(5) of the Rules and Regulations, on November 10,
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2009. The new registration statement and prospectus included therein include all the
information that was required in a prospectus relating to all offerings that it covers at the time
it was filed.
(k) The Receivables are tangible chattel paper, as defined in the UCC, and no Receivables are
electronic chattel paper, as defined in the UCC.
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: (i) the Depositor 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 99.64459% of the principal amount thereof, the respective principal amount of
the Class A-2 Notes set forth opposite the name of such Underwriter on Schedule I hereto and (ii)
the Depositor agrees to cause the Trust to sell to you, and you agree to purchase from the Trust at
a purchase price of 99.53649% of the principal amount thereof, the respective principal amount of
the Class B Notes set forth opposite your name on Schedule I hereto. Delivery of and payment for
the Offered Notes shall be made at the office of Milbank, Tweed, Hadley & McCloy LLP, 1
Chase Manhattan Plaza, New York, New York 10005, on November 24, 2009 (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 Depositor. 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. Written Communications.
(a) The following terms have the specified meanings for purposes of this Agreement:
(i) Free Writing Prospectus means and includes any information
relating to the Offered Notes disseminated by the Depositor or any Underwriter
that constitutes a free writing prospectus within the meaning of Rule 405
under the Securities Act.
(ii) Issuer Information means issuer information as defined in
Rule 433(h)(2) and footnote 271 of the Commissions Securities Offering Reform
Release No. 33-8591 of the Securities Act, including without limitation (1) any
such information contained in any Underwriter Free Writing Prospectus (as
defined below) (for the avoidance of doubt, other than Underwriters
Information) and (2) information in the Preliminary Prospectus that is used to
calculate or create any Derived Information.
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(iii) Derived Information means written information regarding
the Offered Notes of the type described in clause (5) of footnote 271 of the
Commissions Securities Offering Reform Release No. 33-8591 when prepared by
any Underwriter, including traditional computational and analytical materials
prepared by the Underwriters.
(b) The Depositor will not disseminate to any potential investor any information relating to
the Offered Notes that constitutes a written communication within the meaning of Rule 405 under
the Securities Act, other than the Time of Sale Information, any information included in that
certain road show (as defined in Rule 433(h) under the Securities Act) dated November 17, 2009
(the Road Show) and the Prospectus, unless the Depositor has obtained the prior consent of the
Representative.
(c) Neither the Depositor nor any Underwriter shall disseminate or file with the Commission
any information relating to the Offered Notes in reliance on Rule 167 or 426 under the Securities
Act, nor shall the Depositor or any Underwriter disseminate any Underwriter Free Writing Prospectus
in a manner reasonably designed to lead to its broad unrestricted dissemination within the
meaning of Rule 433(d) under the Securities Act.
(d) Each Underwriter Free Writing Prospectus shall bear the following legend, or a
substantially similar legend that complies with Rule 433 under the Securities Act:
The Depositor has filed a registration statement (including a prospectus) with the SEC for
the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the Depositor has filed with
the SEC for more complete information about the Depositor, the issuing entity, and this
offering. You may get these documents for free by visiting EDGAR on the SEC web site at
www.sec.gov. Alternatively, the Depositor, any underwriter or any dealer participating in
the offering will arrange to send you the prospectus if you request it by calling toll-free
1-888-227-2275 ext. 2663.
(e) In the event the Depositor becomes aware that, as of any Time of Sale, any Time of Sale
Information with respect thereto contains or contained any untrue statement of material fact or
omits or omitted to state a material fact necessary in order to make the statements contained
therein (when read in conjunction with all Time of Sale Information) in the light of the
circumstances under which they were made, not misleading (a Defective Prospectus), the Depositor
shall promptly notify the Representative of such untrue statement or omission no later than one
business day after discovery and the Depositor shall, if requested by the Representative, prepare
and deliver to the Underwriters a Corrected Prospectus.
(f) Each Underwriter represents, warrants, covenants and agrees with the Depositor that:
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(i) Other than the Time of Sale Information, any Road Show and the
Prospectus, it has not made, used, prepared, authorized, approved or referred
to and will not prepare, make, use, authorize, approve or refer to any written
communication (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Offered
Notes, including but not limited to any ABS informational and computational
materials as defined in Item 1101(a) of Regulation AB under the Securities
Act; provided, however, that (i) each Underwriter may prepare and convey one or
more written communications (as defined in Rule 405 under the Securities Act)
containing no more than the following: (1) information contemplated by Rule 134
under the Securities Act and included or to be included in the Preliminary
Prospectus or the Prospectus, including but not limited to, information
relating to the class, size, weighted average life, rating, expected final
payment date, legal maturity date, and/or the final price of the Offered Notes,
as well as a column or other entry showing the status of the subscriptions for
the Offered Notes and/or expected pricing parameters of the Offered Notes, (2)
an Intex CDI file that does not contain any Issuer Information (as defined
below) other than Issuer Information included in the Preliminary Prospectus
previously filed with the Commission or other written communication containing
no more than the following: information contemplated by Rule 134 under the
Securities Act and included or to be included in the Preliminary Prospectus or
the Final Prospectus, as well as a column or other entry showing weighted
average life, the status of the subscriptions for the Offered Notes and/or
expected pricing parameters of the Offered Notes and (3) Derived Information
prepared by or on behalf of an Underwriter (each such written communication, an
Underwriter Free Writing Prospectus); (ii) unless otherwise consented to by
the Depositor, no such Underwriter Free Writing Prospectus shall be conveyed to
prospective investors if, as a result of such conveyance, the Depositor or the
Trust shall be required to make any registration or other filing solely as a
result of such Underwriter Free Writing Prospectus pursuant to Rule 433(d)
under the Securities Act other than the filing of the final terms of the
Offered Notes pursuant to Rule 433(d)(5) of the Securities Act; and (iii) each
Underwriter will be permitted to provide confirmations of sale.
(ii) In disseminating information to prospective investors, it has
complied and will continue to comply fully with the Rules and Regulations,
including but not limited to Rules 164 and 433 under the Securities Act and the
requirements thereunder for filing and retention of Free Writing Prospectuses,
including retaining any Underwriter Free Writing Prospectuses they have used
but which are not required to be filed for the required period.
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(iii) Prior to entering into any Contract of Sale, it shall convey the
Time of Sale Information to the prospective investor.
(iv) If a Defective Prospectus has been corrected with a Corrected
Prospectus, it shall (A) provide the Corrected Prospectus to each investor with
whom it entered into a Contract of Sale and that received the Defective
Prospectus from it prior to entering into a new Contract of Sale with such
investor, (B) notify such investor that the prior Contract of Sale with the
investor, if any, has been terminated and of the investors rights as a result
of such agreement and (C) provide such investor with an opportunity to agree to
purchase the Offered Notes on the terms described in the Corrected Prospectus.
(v) Each Underwriter will deliver to the Depositor any Underwriter Free
Writing Prospectus required to be filed with the Commission immediately
following its first use (except as otherwise agreed by the Depositor), except
that the Representative agrees to provide to the Depositor all final pricing
information as soon as practicable on the day the Offered Notes are priced.
(vi) In relation to each Member State of the European Economic Area which
has implemented the Prospectus Directive (each, a Relevant Member State),
that with effect from and including the date on which the Prospectus Directive
is implemented in that Relevant Member State (the Relevant Implementation
Date) it has not made and will not make an offer of the Offered Notes to the
public in that Relevant Member State other than:
(A) to legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely to invest
in securities;
(B) to any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than
43,000,000; and (3) an annual net turnover of more than 50,000,000, as shown in its last
annual or consolidated accounts;
(C) at any time, to fewer than 100 natural or legal persons (other than qualified
investors as defined in the Prospectus Directive) subject to obtaining the prior consent of
the Depositor; or
(D) in any other circumstances falling within Article 3(2) of the Prospectus Directive;
provided that in each of clauses (A) through (D) above, no such offer of the Offered Notes
shall require the Depositor, the Trust or any Underwriter to publish a prospectus pursuant to
Article 3
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of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus
Directive.
For purposes of this provision, the expression an offer of the Offered Notes to the public
in relation to the notes of any series in any Relevant Member State means the communication in any
form and by any means of sufficient information on the terms of the offer and the notes to be
offered so as to enable an investor to decide to purchase or subscribe the Offered Notes, as the
same may be varied in that Member State by any measure implementing the Prospectus Directive in
that Member State, and the expression Prospectus Directive means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member State. As of the date hereof,
the countries comprising the European Economic Area are Austria, Belgium, Bulgaria, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia,
Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia,
Spain, Sweden, United Kingdom, Iceland, Liechtenstein and Norway.
(vii) It has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to engage
in investment activity (within the meaning of Section 21 of the United Kingdom
Financial Services and Markets Act 2000 (the FSMA)) received by it in
connection with the issue or sale of the Offered Notes in circumstances in
which Section 21(1) of the FSMA does not apply to the Trust.
(viii) It has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the Offered Notes
in, from or otherwise involving the United Kingdom.
(g) In the event that any Underwriter shall incur any costs to any investor in connection with
the reformation of the Contract of Sale with such investor that received a Defective Prospectus,
the Depositor agrees to reimburse such Underwriter for such costs.
(h) The Depositor shall file with the Commission any Free Writing Prospectus delivered to
investors in accordance with this Section 6 as the Depositor is required to file under the
Securities Act and the Rules and Regulations, and shall do so within the applicable period of time
required under the Securities Act and the Rules and Regulations. The Depositor shall file with the
Commission the final terms of the Offered Notes pursuant to Rule 433(d)(5) of the Securities Act
(such filing, the Final Term Sheet).
7. Covenants of the Depositor. The Depositor covenants and agrees with each of the
Underwriters that:
(a) Prior to the termination of the offering of the Offered Notes, the Depositor will not file
any amendment of the Registration Statement or supplement to the Preliminary Prospectus or the
Prospectus unless the Depositor has furnished you a copy for your review prior
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to filing and will not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, the Depositor will file the Prospectus, properly
completed, and any supplement thereto, with the Commission pursuant to and in accordance with the
applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to you of such timely filing.
(b) The Depositor will advise you promptly of any proposal to amend or supplement the
Registration Statement as filed or the Preliminary Prospectus or the Prospectus and will not effect
such amendment or supplement without your consent, which consent will not unreasonably be withheld;
the Depositor will also advise you promptly of any request by the Commission for any amendment of
or supplement to the Registration Statement or the Preliminary Prospectus or the Prospectus or for
any additional information; and the Depositor also will advise you promptly of the effectiveness of
any amendment to the Registration Statement, when the Preliminary Prospectus and the Prospectus,
and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b) and
of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threat of any proceeding for that purpose, and the
Depositor will use its best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Offered Notes is required to be
delivered under the Securities Act (or in lieu thereof, a notice provided pursuant to Rule 173(a)
under the Securities Act), any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the Registration Statement or
supplement the Prospectus to comply with the Securities Act or the Securities Exchange Act of 1934,
as amended (the Exchange Act) or the respective rules thereunder, the Depositor promptly will
notify you and will prepare and file, or cause to be prepared and filed, with the Commission,
subject to the first sentence of paragraph (a) of this Section 7, an amendment or supplement that
will correct such statement or omission or effect such compliance. Any such filing shall not
operate as a waiver or limitation of any right of any Underwriter hereunder.
(d) As soon as practicable, but not later than fourteen months after the Closing Date, the
Depositor 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 Securities Act.
(e) The Depositor will furnish to the Underwriters copies of the Registration Statement (one
of which will be signed and will include all exhibits), each related preliminary prospectus, the
Prospectus and all amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Underwriters request.
10
(f) The Depositor 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; provided, however, that in
connection therewith the Depositor shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(g) 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, upon your request, the Depositor will deliver to you the annual
statements of compliance, the assessments of compliance with servicing criteria and the annual
independent certified public accountants attestation 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.
(h) So long as any of the Offered Notes is outstanding, upon your request, the Depositor 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 Depositor filed with any government or regulatory authority that is
otherwise publicly available, as you may reasonably request.
(i) On or before the Closing Date, CFSA shall cause its computer records relating to the
Receivables to be marked to show the Trusts absolute ownership of the Receivables and, from and
after the Closing Date, CFSA shall not take any action inconsistent with the Trusts ownership of
such Receivables, other than as permitted by the Sale and Servicing Agreement.
(j) To the extent, if any, that the ratings provided with respect to the Notes by the rating
agency or agencies that initially rate the Notes are conditional upon the furnishing of documents
or the taking of any other actions by the Depositor, the Depositor shall furnish such documents and
take any such other actions.
(k) For the period beginning on the date of this Agreement and ending on the Closing Date,
unless waived by the Underwriters, neither the Depositor nor any trust originated, directly or
indirectly, by the Depositor 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.
8. Payment of Expenses. The Depositor 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
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disbursements of the Depositors counsel and accountants, (v) the fees and expenses of counsel
to the Underwriters, (vi) the qualification of the Offered Notes under securities laws in
accordance with the provisions of Section 7(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, (vii) 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, the Prospectus and Final Term Sheet, (viii) the printing and delivery to
the Underwriters of copies of any blue sky or legal investment survey prepared in connection with
the Notes, (ix) any fees charged by rating agencies for the rating of the Notes, (x) the fees and
expenses, if any, incurred with respect to any filing with the Financial Industry Regulatory
Authority, Inc. and (xi) the fees and expenses of Milbank, Tweed, Hadley & McCloy LLP in
its role as counsel to the Trust incurred as a result of providing the opinions required by
Section 9.
9. 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 Depositor herein, to the accuracy of the
statements of officers of the Depositor made pursuant to the provisions hereof, to the performance
by the Depositor of its obligations hereunder and to the following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 7(a) hereof, and prior to 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 overtly threatened or, to the
knowledge of the Depositor 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 letters, dated as of the date
hereof and the Closing Date, respectively, 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 Depositor or the Company which, in the reasonable judgment of the
Representative, 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 the Depositor 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
12
judgment of the Representative, 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 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 CFSA and the Company, addressed to you and the Indenture Trustee, dated the Closing Date
and reasonably satisfactory in form and substance to you and your counsel, to the effect that:
(i) CFSA 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, except where the failure to have such organizational
power and authority would not have a material adverse effect on its ability to
perform under the Basic Documents to which it is a party, 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
Delaware with full power and authority to own its properties and conduct its
business as presently conducted by it, except where the failure to have such
organizational power and authority would not have a material adverse effect on
its ability to perform under the Basic Documents to which it is a party, and to
enter into and perform its obligations under the Purchase Agreement.
(iii) Each of CFSA 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 it does business and in which failure to qualify or
to obtain such licenses or approvals would render any Receivable unenforceable
by the Depositor, the Owner Trustee or the Indenture Trustee and except where
the failure to be so qualified or licensed would not have a material adverse
effect on its ability to perform its obligations under the Basic Documents to
which it is a party.
(iv) The direction by the Depositor to the Indenture Trustee to
authenticate the Notes has been duly authorized by the Depositor. The Purchase
Agreement, the Trust Agreement, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized, executed and delivered by
CFSA.
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(v) This Agreement has been duly authorized, executed and delivered by
CFSA.
(vi) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(vii) Neither the transfer of the Receivables from the Depositor 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 CFSA, nor the execution and delivery of 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 CFSA, 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 CFSA or
the Company, or of any indenture or other material agreement or instrument to
which CFSA or the Company is a party or by which any of them is bound, or
result in a violation of or contravene the terms of any statute, order or
regulation applicable to CFSA or the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over any of
them.
(viii) There are no actions, proceedings or investigations pending or, to
the best of such counsels 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 CFSA 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.
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(ix) To the best knowledge of such counsel and except as set forth in the
Prospectus (and any supplement thereto), no material default exists and no
event has occurred which, with notice, lapse of time or both, would constitute
a material default in the due performance and observance of any term, covenant
or condition of any material agreement to which the Depositor or the Company is
a party or by which any of them is bound, which material default has or would
have a material adverse effect on the financial condition, earnings, prospects,
business or properties of the Depositor and its subsidiaries, taken as a whole.
(x) Nothing has come to such counsels attention that would lead such
counsel to believe that the representations and warranties of (x) the Company
contained in the Purchase Agreement are other than as stated therein or (y)
CFSA contained in this Agreement, the Trust Agreement, the Purchase Agreement
or the Sale and Servicing Agreement are other than as stated therein.
(xi) The Depositor 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.
(xii) To the extent that Article 9 of the Uniform Commercial Code as in
effect in the State of Michigan (the UCC) is applicable (without regard to
conflict of laws principles) and assuming that the security interest created by
the Sale and Servicing Agreement in the Receivables has been duly created and
has attached, upon the filing of a UCC-1 financing statement with the Secretary
of State of the State of Michigan, the Trust will have a perfected security
interest in the Sellers rights in such Receivables and the proceeds thereof,
and such security interest will be prior to any other security interest granted
by the Seller that is perfected solely by the filing of a financing statement
under the UCC, excluding: (a) purchase money security interests under Section
9-324 of the UCC; and (b) temporarily perfected security interests in proceeds
under Section 9-315 of the UCC, subject to the proviso that the Trust may not
have a perfected security interest in the Vehicles in some states because
certificates of title to the Financed Vehicles will not be amended to reflect
the assignment to the Trust. No filing or other action, other than the filing
of the UCC-1 financing
15
statement with the Secretary of State of the State of Michigan referred to
above, and the filing of continuation statements at five year intervals, is
necessary to perfect and maintain the interest or the security interest of the
Trust in the Receivables, the security interests in the Financed Vehicles
securing the Receivables, and the proceeds of each of the foregoing against
third parties. Notwithstanding any other statements in this opinion, such
counsel does not express any opinion as to the perfection or priority of any
security interest in (i) receivables other than the Receivables transferred to
the Trust on the Closing Date or (ii) proceeds except for identifiable
proceeds, subject, however, to the limitations of Section 9-315 of the UCC; and
such counsel does not express any opinion as to the certain circumstances
described in Sections 9-320 and 9-330 of the UCC wherein purchasers of Financed
Vehicles or Receivables may take the Financed Vehicles or Receivables free of a
perfected security interest, as to certain circumstances described in Sections
9-303, 9-316, 9-317 and 9-337 where a Financed Vehicle may have been relocated,
or where a Financed Vehicle becomes subject to a mechanics lien, tax lien, or
confiscation by government authorities under certain circumstances. In
addition, such counsel has assumed that (i) no financing statement, amendment,
or termination statement, other than the financing statement listing CFSA or
the Trust as debtor or seller and describing any portion of the Trust Estate,
has been filed with the Secretary of State of the State of Michigan since the
date and time any Article 9 UCC search was performed as a part of this
transaction and (ii) the requirements of Section 9-104 of the UCC have been
complied with.
(xiii) The Receivables are tangible chattel paper, as defined in the UCC.
(xiv) The statements in the Preliminary Prospectus and the Prospectus
under the headings Risk Factors Trusts May Not Have a Perfected Security
Interest in Certain Financed Vehicles and Insolvency of the Depositor,
Residual Holdco, or a Trust 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.
(xv) The statements contained in the Preliminary Prospectus and the
Prospectus and any supplement thereto under the headings Payments on the
Notes, Payments on the Securities, Form of Securities and Transfers,
Principal Documents, Sale Provisions, Servicing and The Indenture,
insofar as such statements constitute a summary of the Notes, the
16
Indenture, the Administration Agreement, the Sale and Servicing Agreement
and the Trust Agreement, constitute a fair summary of such documents.
(xvi) 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.
(xvii) Such counsel is familiar with the Depositors standard operating
procedures relating to the Depositors acquisition of a perfected first
priority security interest in the vehicles financed by the Depositor pursuant
to retail automobile and light duty truck installment sale contracts in the
ordinary course of the Depositors business. Assuming that the Depositors
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 Depositor 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 Depositor has acquired or will acquire a perfected
first priority security interest in the Financed Vehicles.
(xviii) The Depositor 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.
(xix) To the best of such counsels 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.
(xx) To the best of such counsels 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.
17
(xxi) The Registration Statement has become effective under the Securities
Act, any required filing of the Preliminary Prospectus and the Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b) and, to the best knowledge
of such counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities 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 Securities Act, the
Exchange Act, the Trust Indenture Act and the Rules and Regulations.
(xxii) Such counsel has examined the Registration Statement and the
Prospectus and nothing has come to such counsels 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 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
(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 Underwriters 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; 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 Date,
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 or 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 Time of Sale, 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.
18
(e) You shall have received an opinion of Dickinson Wright PLLC, Michigan tax counsel to CFSA,
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 a corporation 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 tax and Michigan business tax purposes, the Notes will
be characterized as debt.
(f) You shall have received an opinion addressed to you of Milbank, Tweed, Hadley & McCloy
LLP, in its capacity as federal tax counsel to the Trust, dated the Closing Date, 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 Preliminary Prospectus Supplement and the
Prospectus Supplement under the heading Federal Income Tax Consequences subject to the
qualifications and limitations stated therein accurately describe the material federal income tax
consequences to holders of the Notes.
(g) You shall have received an opinion addressed to you of Orrick, Herrington & Sutcliffe LLP,
in its capacity as special counsel to the Underwriters, dated the Closing Date, with respect to the
validity of the Offered Notes and such other related matters as you shall require, and the
Depositor 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.
(h) You shall have received an opinion addressed to you of Milbank, Tweed, Hadley & McCloy
LLP, in its capacity as special ERISA counsel to the Trust, dated the Closing Date, with
respect to the characterization of the transfer of the Receivables and to the effect that the
statements in the Preliminary Prospectus and the Prospectus under the headings Summary ERISA
Considerations and Certain ERISA Considerations, to the extent that they constitute statements
of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects.
(i) You shall have received an opinion addressed to you of Milbank, Tweed, Hadley & McCloy
LLP, in its capacity as special counsel to CFSA, dated the Closing Date, with respect to
(i) (x) the non-consolidation of the assets and liabilities of the Company with those of CFSA in
the event of the bankruptcy of CFSA and (y) the non-consolidation of the assets and liabilities of
the Trust with those of the Company in the event of the bankruptcy of the Company, and (ii) the
transfer of the receivables from the Depositor to the Trust as a true sale of the receivables. You
shall have received an opinion addressed to you of Milbank, Tweed, Hadley & McCloy LLP, in
its capacity as special counsel to the Trust, dated the Closing Date, with respect to the
enforceability of this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and
Servicing Agreement and the Administration Agreement (the Opinion Documents), the
19
enforceability of the Notes, the governmental consents or filings required in connection with
the execution, delivery and performance of the Opinion Documents and the issuance of the Notes, the
creation of valid and enforceable security or ownership interests created under the Indenture and
the perfection of the security interests created under the Indenture, the absence of a requirement
to register the Depositor and the Issuer under the Investment Company Act and such other customary
legal matters as you may request.
(j) You shall have received a negative assurance letter addressed to you from Milbank, Tweed,
Hadley & McCloy LLP, in its capacity as special counsel to the Trust, dated the Closing
Date.
(k) You shall have received an opinion addressed to you of Richards, Layton & Finger, P.A., in
its capacity as special Delaware counsel to the Trust, dated the Closing Date, with respect to
corporate matters.
(l) You shall have received an opinion addressed to you of Richards, Layton & Finger, P.A., in
its capacity as special Delaware counsel to the Trust, dated the Closing Date, with respect to UCC
matters.
(m) You shall have received an opinion addressed to you and CFSA of in-house counsel of Wells
Fargo Bank, National Association, dated the Closing Date and satisfactory in form and substance to
you and your counsel, to the effect that:
(i) Wells Fargo Bank, National Association has been duly organized as a
national banking association under the laws of the United States in good
standing, and has the requisite entity power and authority to execute and
deliver each of the Indenture, the Sale and Servicing Agreement and the
Administration Agreement and to perform its obligations thereunder.
(ii) With respect to Wells Fargo Bank, National Association, the
performance of its obligations under each of the Indenture, the Sale and
Servicing Agreement 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
court, agency or other governmental body under any United States federal
statute or regulation that in our experience is normally applicable to
transactions of the type contemplated by each of the Indenture, the Sale and
Servicing Agreement 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 Wells Fargo Bank, National Association, the
performance of its obligations under each of the Indenture, the Sale and
Servicing Agreement and the Administration Agreement and the
20
consummation of the transactions contemplated thereby will not result in
any breach or violation of its articles of association or bylaws.
(iv) With respect to Wells Fargo Bank, National Association, the
performance of its obligations under each of the Indenture, the Sale and
Servicing Agreement 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 statute or regulation that in the
experience of such counsel is normally applicable to transactions of the type
contemplated by each of the Indenture, the Sale and Servicing Agreement or the
Administration Agreement.
(v) With respect to Wells Fargo Bank, National Association, 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,
the Sale and Servicing Agreement or the Administration Agreement.
(vi) Each of the Indenture, the Sale and Servicing Agreement and the
Administration Agreement has been duly authorized, executed and delivered by
Wells Fargo Bank, National Association.
(vii) Each of the Indenture, the Sale and Servicing Agreement 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 Wells Fargo Bank, National
Association.
(viii) The Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the Indenture.
(n) You shall have received an opinion addressed to you and CFSA of Richards, Layton & Finger,
P.A., counsel to the Owner Trustee, dated the Closing Date and satisfactory in form and substance
to you and your counsel, to the effect that:
21
(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.
(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, 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.
(o) 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 Depositor 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 CFSA or the Company, as the case may be, contained in this
Agreement, the Trust Agreement, the Purchase Agreement and the Sale and Servicing Agreement, as
applicable, are true and correct; that CFSA 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 the dates as of which information is given 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, CFSA or the Company has occurred.
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(p) The representations and warranties of CFSA, the Company or the Trust, as the case may be,
contained in this Agreement, the Trust Agreement, the Purchase Agreement, the Sale and Servicing
Agreement and the Indenture, as applicable, are true and correct.
(q) 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 Depositor 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.
(r) The Class A-2 Notes shall have been rated AAA or its equivalent and the Class B Notes
shall have been rated A or its equivalent by each of Standard & Poors Ratings Services, a
division of The McGraw-Hill Companies, Inc. (S&P) and Fitch, Inc. (Fitch). The Class A-1 Notes
shall have been rated at least A-1+ by S&P and F1+ by Fitch.
(s) The issuance of the Notes 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
Depositor or any of its affiliates.
(t) On the Closing Date, the Class C Notes shall have been issued to the Company.
(u) On the Closing Date, the Depositor shall have purchased and fully paid for all of the
Class A-1 Notes.
(v) The Indenture Trustee shall have delivered an officers certificate certifying that the
information contained in the Statement of Eligibility and Qualification (Form T-1) of the Indenture
Trustee under the Trust Indenture Act filed on a Form 8-K as an exhibit to the Registration
Statement is true and correct.
(w) All proceedings in connection with the transactions contemplated by this Agreement, and
all documents incident hereto, shall be reasonably satisfactory in form and substance to the
Representative and counsel for the Representative, and the Representative and counsel for the
Representative shall have received such other information, opinion, certificates and documents as
they may reasonably request in writing.
The Depositor will provide or cause to be provided to you such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
(x) You shall have received an opinion addressed to you of Richards, Layton & Finger, P.A., in
its capacity as special Delaware counsel to the Company, dated the Closing Date.
(y) You shall have received evidence satisfactory to you and your counsel as to the release of
prior liens (other than those granted under the Basic Documents) on the Receivables, including
copies of all related notices, authorizations, certifications, instruments, legal opinions
23
and UCC-3 amendments or termination statements executed or submitted for filing in connection
with such release.
10. Indemnification and Contribution. (a) The Depositor 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 Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, in the Road Show pertaining to the offering of the Notes, or in the Issuer
Information or in any computer tape in respect of the Notes or the related receivables furnished by
the Depositor, or arise out of or are based upon the omission or alleged omission to state therein
(in the case of the Road Show pertaining to the offering of the Notes and the Issuer Information,
when read together with the Preliminary Prospectus) a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by 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 Depositor 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 (i) any of such documents in
reliance upon and in conformity with the Underwriters Information or (ii) any Issuer Information
that was subsequently corrected in the Time of Sale Information to the extent the Underwriters
failed to deliver the Time of Sale Information to applicable investors prior to the Time of Sale.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the
Depositor against any losses, claims, damages or liabilities to which the Depositor may become
subject, under the Securities 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 (x) in the Registration
Statement, the Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or
(y) in any Derived Information prepared by or on behalf of such Underwriter, 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 (A) in the Registration Statement, the Preliminary Prospectus or the Prospectus
or in any amendment or supplement thereto was made in reliance upon and in conformity with the
Underwriters Information or (B) in the Derived Information prepared by or on behalf of such
Underwriter that does not arise out of or is not based upon an error or material omission in the
Issuer Information or any information contained in the Preliminary Prospectus or in any computer
tape in respect of the Notes or the related receivables furnished by the Depositor to any
Underwriter, and will reimburse any legal or other expenses reasonably incurred by the Depositor in
connection with investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred. Notwithstanding anything to the contrary herein, no Underwriter shall
be obligated pursuant to this subsection (b)
24
to indemnify and hold harmless the Depositor with respect to (i) any Underwriters Information
pertaining to another Underwriter or (ii) any Derived Information prepared by or on behalf of
another Underwriter.
(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, provided the indemnifying party has not been materially prejudiced by
such failure to so notify. 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. No indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action or claim and (ii)
does not include any statement as to, or an admission of, fault, culpability or a failure to act,
by or on behalf of an indemnified party.
(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 Depositor 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 Depositor 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 Depositor 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 Depositor bear to
the total underwriting discounts and commissions received by the
25
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 Depositor 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 Depositor and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). 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 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 and
no Underwriter shall be required to contribute any amount pursuant to this subsection (d) with
respect to any Derived Information prepared by or on behalf of another Underwriter. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Depositor under this Section shall be in addition to any liability
the Depositor 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 Securities 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 Depositor, to each officer of the Depositor who has signed the
Registration Statement and to each person, if any, who controls the Depositor within the meaning of
the Securities Act.
11. 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 Depositor 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 Depositor, except as provided
in Section 13. 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.
12. No Bankruptcy Petition. Each Underwriter agrees that it will not institute
against, or join any person in instituting against the Trust or the Depositor any bankruptcy,
winding-up, re-organization, arrangement, insolvency or liquidation proceeding or other proceedings
under any similar law until one
26
year and one day has elapsed since the payment in full of all amounts due under all securities
issued by the Depositor or by a trust for which the Depositor was the depositor which securities
were rated by any nationally recognized statistical rating organization; provided, however, that
nothing shall preclude, or be deemed to stop, any Underwriter (i) from taking any action prior to
the expiration of the aforementioned period in (A) any proceeding voluntarily filed or commenced by
the Trust or (B) any involuntary insolvency proceedings filed or commenced by a person other than
such Underwriter, (ii) from commencing against the Trust or any of its properties any legal action
which is not a bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation
proceeding or (iii) from taking any action to prevent an impairment of any right afforded to such
Underwriter under the Basic Documents
13. Survival of Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Depositor 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 Depositor 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 Depositor or any of their respective
representatives, officers or directors or any controlling person, and will survive delivery of and
payment for the Offered Notes. If for any reason the purchase of the Offered Notes by the
Underwriters is not consummated, the Depositor shall remain responsible for the expenses to be paid
or reimbursed by the Depositor pursuant to Section 8 and the respective obligations of the
Depositor and the Underwriters pursuant to Section 10 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), (iii), (iv) and (v) of Section 9(c)),
the Depositor 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 13 shall limit the recourse of
the Depositor against the Underwriters.
14. 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
Barclays Capital Inc., 745 Seventh Avenue, 5th Floor, New York, New York 10019; if sent to the
Depositor, will be mailed, delivered or telegraphed, and confirmed to it at Chrysler Financial
Services Americas LLC, 27777 Inkster Road, Farmington Hills, Michigan 48334, Attention: Assistant
General Counsel Treasury. Any such notice will take effect at the time of receipt.
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. 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 10, and no other person will have any right or obligations
hereunder.
17. [Reserved]
27
18. Miscellaneous. The Depositor acknowledges and agrees that (i) the purchase and
sale of the Offered Notes pursuant to this Agreement is an arms-length commercial transaction
between the Depositor, on the one hand, and the several Underwriters, on the other, (ii) in
connection therewith and with the process leading to such transaction each Underwriter is acting
solely as a principal and not the agent or fiduciary of the Depositor or any other person, (iii) no
Underwriter has assumed an advisory or fiduciary responsibility in favor of the Depositor or any
other person with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising the Depositor on
other matters) or any other obligation to the Depositor or any other person except the obligations
expressly set forth in this Agreement, (iv) the Depositor has consulted its own legal and financial
advisors to the extent it deemed appropriate and (v) no Underwriter is advising the Depositor or
any other person with respect to any legal, tax, investment, accounting or regulatory matters. The
Depositor agrees that it will not claim that the Underwriters, or any of them, has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Depositor,
in connection with such transaction or the process leading thereto.
Notwithstanding any other provision of this Agreement, immediately after commencement of
discussions with respect to the transactions contemplated hereby, the Depositor (and each employee,
representative or other agent of the Depositor) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions contemplated by
this Agreement and all materials of any kind (including opinions or other tax analyses) that are
provided to the Depositor relating to such tax treatment and tax structure. For purposes of the
foregoing, the term tax treatment is the purported or claimed federal income tax treatment of the
transactions contemplated hereby, and the term tax structure includes any fact that may be
relevant to understanding the purported or claimed federal income tax treatment of the transactions
contemplated hereby.
19. 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.
20. Applicable Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT AND ANY CLAIM OR CONTROVERSY DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL IN ALL
RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED AND DETERMINED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISION THAT WOULD REQUIRE
THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION).
21. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Depositor and the Underwriters, or any of them, with respect to the subject
matter hereof.
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22. The Depositor and each of the Underwriters hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
[remainder of page intentionally blank]
29
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
Depositor and the several Underwriters in accordance with its terms.
Very truly yours, | ||||||
CHRYSLER FINANCIAL SERVICES AMERICAS LLC |
||||||
By: | /s/ L.F. Guindi | |||||
Name: L.F. Guindi | ||||||
Title: Vice President and Treasurer |
CFAST 2009-B Underwriting Agreement
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
is hereby confirmed and accepted
as of the date first written above:
Barclays Capital Inc.,
as an Underwriter and Representative of the several Underwriters of the Class A-2 Notes
identified on Schedule I hereto, and as sole Underwriter of the Class B Notes
as an Underwriter and Representative of the several Underwriters of the Class A-2 Notes
identified on Schedule I hereto, and as sole Underwriter of the Class B Notes
By: |
/s/ Jay Kim | |||
Title: Managing Director |
CFAST 2009-B Underwriting Agreement
SCHEDULE I
Class A-2 Notes
Principal Amount of | ||||
Underwriters | the Class A-2 Notes | |||
Barclays Capital Inc. |
$ | 55,900,000 | ||
BNP Paribas Securities Corp. |
55,900,000 | |||
Citigroup Global Markets Inc. |
55,900,000 | |||
J.P. Morgan Securities Inc. |
55,900,000 | |||
RBC Capital Markets Corporation |
55,900,000 | |||
Total |
$ | 279,500,000 |
Class B Notes
Principal Amount of | ||||
Underwriter | the Class B Notes | |||
Barclays Capital Inc. |
$ | 54,600,000 | ||
Total |
$ | 54,600,000 |
I-1