EXHIBIT 1.1
CARCO AUTO LOAN MASTER TRUST
[ %][FLOATING RATE] AUTO LOAN ASSET BACKED CERTIFICATES,
SERIES 199[_-_]
U.S. AUTO RECEIVABLES COMPANY
(SELLER)
FORM OF UNDERWRITING AGREEMENT
[ ], 199[ ]
[ ]
As Representatives of the
Several Underwriters
Dear Sirs:
1. Introductory. U.S. Auto Receivables Company, a Delaware
corporation (the "Seller"), proposes to cause CARCO Auto Loan Master Trust
(the "Trust") to sell $[ ] principal amount of its [Floating Rate][ %] Auto
Loan Asset Backed Certificates, Series 199[_-_] (the "Certificates"), to the
several underwriters set forth on Schedule I hereto (the "Underwriters"), for
whom you are acting as representative (the "Representative"). Each
Certificate will represent a fractional undivided ownership interest in the
Trust. The assets of the Trust include, among other things, a pool of
receivables (the "Receivables") generated from time to time pursuant to
wholesale automobile loan revolving credit agreements of Chrysler Financial
Corporation (the "Company"), directly or as successor to Chrysler Credit
Corporation, a Delaware corporation ("CCC"), and the related Collateral
Security. The Receivables were sold to the Trust by the Seller and are
serviced for the Trust by the Company, as successor to CCC. The Certificates
will be issued pursuant to a pooling and servicing agreement dated as of May
31, 1991, as assigned by Chrysler Auto Receivables Company ("CARCO") to the
Seller on August 8, 1991 (as assigned and as supplemented and amended from
time to time, the "P&S"), among CARCO, the Seller, CCC, which has been
succeeded by the Company, as Servicer, and Manufacturers and Traders Trust
Company, which has been succeeded by The Bank of New York, as trustee (the
"Trustee"), and the Series 199[_-_] Supplement to the P&S to be dated as of [
], 199[ ] (the "Supplement"), among the Seller, the Company and the Trustee.
The P&S and the Supplement are collectively referred to as the "Pooling and
Servicing Agreement".
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Capitalized terms used and not otherwise defined herein
shall have the meanings given them in the Pooling and Servicing Agreement.
2. Representations and Warranties of the Seller. The Seller
represents and warrants to, and agrees with, you that:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (Registration No. [
]), including a related preliminary prospectus, on such Form for the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of the Certificates. The Seller may have filed one or more amendments
thereto, including the related preliminary prospectus, each of which has
previously been furnished to you. The Seller will next file with the
Commission either (i) prior to the effectiveness of such registration
statement, a further amendment thereto (including the form of final
prospectus) or (ii) a final prospectus in accordance with Rules 430A and
424(b)(1) or (4) or (iii) a final prospectus in accordance with Rules 415 and
424(b)(2) or (5). In the case of clause (ii), the Seller has included in such
registration statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Securities Act and the
rules thereunder to be included in the prospectus with respect to the
Certificates and the offering thereof. As filed, such amendment and form of
final prospectus, or such final prospectus, shall include all Rule 430A
Information, together with all other such required information, with respect
to the Certificates and, except to the extent that you 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 latest preliminary prospectus
which has previously been furnished to you) as the Seller has advised you,
prior to the Execution Time, will be included or made therein. If the
Registration Statement contains the undertaking specified by Regulation S-k
Item 512(2), the Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
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For purposes of this Agreement, "Effective Time" means the
date and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time. Such
registration statement, as amended at the Effective Time, including all
information deemed to be a part of such registration statement as of the
Effective Time pursuant to Rule 430A(b) under the Securities Act, and
including the exhibits thereto and any material incorporated by reference
therein, is hereinafter referred to as the "Registration Statement", and the
form of prospectus relating to the Certificates as first filed with the
Commission pursuant to and in accordance with Rule 424(b) under the
Securities Act or, if no filing pursuant to Rule 424(b) is required, the form
of final prospectus included in the Registration Statement at the Effective
Date, is hereinafter referred to as the "Prospectus". "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto. "Preliminary Prospectus" shall mean any preliminary
prospectus referred to above and any preliminary prospectus included in the
Registration Statement which at the Effective Date omits Rule 430A
Information. "Rule 430A Information" means information with respect to the
Certificates and the offering of the Certificates permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule
430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such
rules or regulations under the Securities Act. Any reference herein to the
Registration Statement, a 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 such
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, any 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 any Preliminary Prospectus or the Prospectus,
as the case may be, deemed to be incorporated therein by reference.
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(b) On the Effective Date and on the date of this
Agreement, the Registration Statement did or will, and, when the Prospectus
is first filed (if required) in accordance with Rule 424(b) and on the
Closing Date, the Prospectus (and any supplements thereto) will, comply in
all material respects with the applicable requirements of the Securities Act
and the rules and regulations of the Commission (the "Rules and
Regulations"); on the Effective Date, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; and, on the
Effective Date, the Prospectus, if not filed pursuant to Rule 424(b), did not
or will not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Seller makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Prospectus (or
any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Seller by any Underwriter specifically for use in
connection with preparation of the Registration Statement or the Prospectus
(or any supplement thereto). As of the Closing Date (as defined below), the
Seller's representations and warranties in the Pooling and Servicing
Agreement will be true and correct.
(c) This Agreement has been duly authorized, executed and
delivered by the Seller and the Company.
(d) None of the Seller, the Company or anyone acting on its
behalf has taken any action that would require qualification of the Pooling
and Servicing Agreement under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), or require registration of the Seller or the
Trust under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), nor will the Seller or the Company act, nor has either of them
authorized or will any of them authorize any person to act, in such manner
with respect to any Certificate.
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3. Purchase, Sale, and Delivery of Certificates. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Seller agrees to
cause the Trust to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Trust the respective
principal amount of the Certificates set forth opposite the name of such
Underwriter on Schedule I hereto, at a purchase price of [ ] of the aggregate
principal amount thereof. Delivery of and payment for the Certificates shall
be made at the office of [ ], [ ], on [ ], 199[ ] (the "Closing Date").
Delivery of one or more global certificates representing the Certificates
shall be made against payment of the purchase price in immediately available
funds drawn to the order of the Seller. The global certificates to be so
delivered shall be registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Certificates will be represented by book entries on the records of DTC and
participating members thereof. Definitive Certificates representing the
Certificates will be available only under limited circumstances.
4. Offering by Underwriters. It is understood that, after
the Registration Statement becomes effective, the Underwriters propose to
offer the Certificates for sale to the public (which may include selected
dealers), as set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees
with the Underwriters that:
(a) The Seller will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective. If the Registration Statement has become
or becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), the Seller will file the Prospectus,
properly completed, and any supplement thereto, with the Commission pursuant
to and in accordance with the applicable subparagraph within the time period
prescribed. The Seller will advise you promptly of any such filing pursuant
to Rule 424(b).
(b) The Seller will advise you promptly of any proposal to
amend or supplement the registration statement
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as filed, or the related prospectus, and will not effect such amendment or
supplement without your consent, which consent will not unreasonably be
withheld; the Seller will also advise you promptly of any request by the
Commission for any amendment of or supplement to the Registration Statement
or the Prospectus or for any additional information; and the Seller will also
advise you promptly of the effectiveness of the Registration Statement, of
any amendment or supplement of the Registration Statement or the Prospectus
and of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threat of
any proceeding for that purpose and the Seller will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered 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 or supplement the Prospectus to comply with
the Securities Act, the Seller promptly will prepare and file, or cause to be
prepared and filed, with the Commission an amendment or supplement which will
correct such statement or omission, or an amendment or supplement which will
effect such compliance. Any such filing shall not operate as a waiver or
limitation on any rights of the Underwriters hereunder.
(d) As soon as practicable, but not later than sixteen
months after the original effective date of the Registration Statement, the
Seller will cause the Trust to make generally available to Series 199[_-_]
Certificateholders an earnings statement of the Trust covering a period of at
least twelve months beginning after the Effective Date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 under the Securities Act.
(e) The Seller will furnish to the Underwriters copies of
the Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments
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and supplements to such documents, in each case as soon as available and in
such quantities as you request.
(f) The Seller will arrange for the qualification of the
Certificates for sale under the laws of such jurisdictions in the United
States as you may reasonably designate and will continue such qualifications
in effect so long as required for the distribution.
(g) For a period from the date of this Agreement until the
retirement of the Certificates, or until such time as the Underwriters shall
cease to maintain a secondary market in the Certificates, whichever occurs
first, the Seller will deliver to the Underwriters the annual statement of
compliance and the annual independent certified public accountants' report
furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as
soon as such statements and reports are furnished to the Trustee.
(h) So long as any of the Certificates are outstanding, the
Seller will furnish to the Underwriters (i) as soon as practicable after the
end of the fiscal year all documents required to be distributed to Series
199[_-_] Certificateholders or filed with the Commission pursuant to the
Exchange Act, or any order of the Commission thereunder and (ii) from time to
time, any information concerning the Seller filed with any government or
regulatory authority which is otherwise publicly available, as the
Underwriters may reasonably request.
(i) On or before the Closing Date, the Seller shall cause
the computer records of the Seller and the Company relating to the
Receivables to be marked to show the Trustee's absolute ownership of the
Receivables, and from and after the Closing Date neither the Company nor the
Seller shall take any action inconsistent with the Trustee's ownership of
such Receivables, other than as permitted by the Pooling and Servicing
Agreement.
(j) To the extent, if any, that the rating provided with
respect to the Certificates by the rating agency or agencies that initially
rate the Certificates is conditional upon the furnishing of documents or the
taking of any other actions by the Seller, the Seller shall furnish such
documents and take any such other actions.
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[(k) For the period beginning on the date of this Agreement
and ending seven days after the Closing Date, unless waived by the
Underwriters, none of the Seller, the Company or any trust originated,
directly or indirectly, by the Seller or the Company will offer to sell or
sell certificates substantially similar to the Certificates, which are
collateralized by, or evidencing an ownership interest in, receivables
generated pursuant to wholesale automobile loan revolving credit agreements
without the prior written consent of the Underwriters.]
6. Payment of Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the preparation of this
Agreement, (iii) the preparation, issuance and delivery of the Certificates
to the Underwriters, (iv) the fees and disbursements of the Seller's counsel
and accountants, (v) the qualification of the Certificates under state
securities laws in accordance with the provisions of Section 5(f), including
filing fees and the fees and disbursements of counsel for you in connection
therewith and in connection with the preparation of any blue sky survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, (vii) the
printing and delivery to the Underwriters of copies of any blue sky survey
prepared in connection with the Certificates, (viii) any fees charged by
rating agencies for the rating of the Certificates, (ix) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., and (x) the fees and expenses of
Cravath, Swaine & Xxxxx in its role as special counsel to the Underwriters or
the Seller, as the case may be, incurred as a result of providing the
opinions required by Sections 7(g) and 7(h) hereof.
7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Certificates will
be subject to the accuracy of the representations and warranties on the part
of the Seller herein, to the accuracy of the statements of officers of the
Seller made pursuant to the provisions hereof, to the performance by the
Seller of its obligations hereunder and to the following additional
conditions precedent:
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(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriters agree in writing to a
later time, the Registration Statement shall have become effective not later
than (i) 6:00 p.m. New York City time on the date of determination of the
public offering price, if such determination occurred at or prior to 3:00
p.m. New York City time on such date or (ii) 12:00 noon on the business day
following the day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have
been filed (if required) with the Commission in accordance with the Rules and
Regulations and Section 2 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, to the knowledge of the Seller or the Underwriters, shall be contemplated
by the Commission or by any authority administering any state securities or
blue sky law.
(c) On or prior to the date of this Agreement and on or
prior to the Closing Date, you shall have received a letter or letters, dated
as of the date of this Agreement and as of the Closing Date, respectively, of
Deloitte & Touche, 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.
(d) Subsequent to the execution and delivery of this
Agreement, 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 or Chrysler Corporation
which, in the judgment of the Underwriters, materially impairs the investment
quality of the Certificates or makes it impractical or inadvisable to market
the Certificates; (ii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any securities
of Chrysler Corporation or the Company on any exchange or in the
over-the-counter market; (iii) any banking moratorium declared by Federal or
New York authorities; or (iv) any outbreak or
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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 if, in the judgment of the Underwriters,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion of
the sale of and payment for the Certificates.
(e) You shall have received an opinion of Xxxxxxxxxxx X.
Xxxxxxxxx, Vice President and General Counsel of the Company and the Seller,
addressed to you and the Trustee, dated the Closing Date and satisfactory in
form and substance to you and your counsel, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Michigan with full power and authority (corporate and
other) 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 Pooling and Servicing Agreement and the
Receivables Sale Agreement, and had at all relevant times, and now
has, the power, authority and legal right to acquire, own, sell and
service the Receivables.
(ii) The Seller has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware with full power and authority (corporate and
other) 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 Receivables Purchase Agreement and the Pooling
and Servicing Agreement and had at all times, and now has, the
power, authority and legal right to acquire, own and sell the
Receivables.
(iii) Each of the Company and the Seller 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 or the Trustee on behalf of
any Certificateholder.
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(iv) The direction by the Seller to the Trustee to
authenticate the Certificates has been duly authorized by the
Seller, the Certificates have been duly executed and delivered by
the Seller and, when authenticated by the Trustee in accordance with
the Pooling and Servicing Agreement and delivered and paid for
pursuant to this Agreement, will be duly issued and entitled to the
benefits and security afforded by the Pooling and Servicing
Agreement, subject as to the enforcement of remedies (x) to
applicable bankruptcy, insolvency, reorganization, moratorium, and
other similar laws affecting creditors' rights generally, (y) to
general principles of equity (regardless of whether the enforcement
of such remedies is considered in a proceeding in equity or at law),
and (z) to the further qualification that certain of the remedial
provisions in the Pooling and Servicing Agreement may be limited or
rendered unenforceable under the laws of the State of New York (but
such laws do not, in such counsel's opinion, make the remedies
provided by the Pooling and Servicing Agreement unsatisfactory for
the realization of the benefits provided thereby).
(v) The Receivables Purchase Agreement and the Pooling and
Servicing Agreement have been duly authorized, executed and
delivered by the Seller, and are legal, valid and binding
obligations of the Seller enforceable against the Seller 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.
(vi) This Agreement has been duly authorized, executed and
delivered by the Seller and the Company.
(vii) The Receivables Sale Agreement and the Pooling and
Servicing Agreement have been duly authorized, executed and
delivered by CCC, the predecessor of 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
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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.
(viii) Neither the merger of CCC into the Company and the
assumption by the Company of all of CCC's obligations under the
Receivables Purchase Agreement and the Pooling and Servicing
Agreement, nor the transfer of the Receivables from the Company to
the Seller, nor the transfer of the Receivables from the Seller to
the Trustee acting on behalf of the Trust, nor the assignment of the
Collateral Security to the Seller, nor the assignment of the
Collateral Security to the Trustee acting on behalf of the Trust,
nor the assignment of the Receivables Purchase Agreement by the
Seller to the Trustee on behalf of the Trust, nor the execution and
delivery of the Receivables Sale Agreement and the Pooling and
Servicing Agreement by CCC, nor the execution and delivery of this
Agreement, the Receivables Purchase Agreement, the Pooling and
Servicing Agreement and the Certificates by the Seller, nor the
consummation of any transactions contemplated in this Agreement, the
Receivables Purchase Agreement or the Pooling and Servicing
Agreement, nor the fulfillment of the terms of this Agreement, the
Receivables Purchase Agreement, the Pooling and Servicing Agreement
and the Certificates by the Company or the Seller, as the case may
be, will conflict with, or result in a breach, violation or
acceleration of, or constitute a default under, any term or
provision of the articles of incorporation or by-laws of the Company
or the Seller or of any indenture or other agreement or instrument
to which the Company or the Seller is a party or by which either of
them or their respective property is bound, or result in a
violation, or contravene the terms, of any statute, order or
regulation applicable to the Company or the Seller of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over any of them.
(ix) There are no actions, proceedings or investigations
pending or, to the best of such counsel's knowledge after due
inquiry, threatened
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before any court, administrative agency, or other tribunal (1)
asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement or the Receivables Purchase Agreement, (2)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement
or the Receivables Purchase Agreement or the execution and delivery
thereof, (3) that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement, the Receivables Sale Agreement
or the Pooling and Servicing Agreement or (4) that might materially
and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this
Agreement, the Receivables Purchase Agreement or the Pooling and
Servicing Agreement.
(x) To the best knowledge of such counsel and except as set
forth in the Prospectus, 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 agreement to which the Company is a party or by
which it is bound, which default is or would be material for the
financial condition, earnings, prospects, business or properties of
the Company and its subsidiaries, taken as a whole.
(xi) Nothing has come to such counsel's attention that would
lead such counsel to believe that the representations and warranties
of (x) the Company or CCC contained in the Receivables Purchase
Agreement or the Pooling and Servicing Agreement are other than as
stated therein or (y) the Seller contained in this Agreement, the
Receivables Purchase Agreement or the Pooling and Servicing
Agreement are other than as stated therein.
(xii) The Seller is the sole owner of all right, title and
interest in, and has good and marketable title to, the Receivables
and the Collateral Security to be transferred by it to the Trust.
The assignment of the Receivables and the Collateral Security, all
documents and instruments relating thereto and all proceeds thereof
to the Trustee, pursuant to the Pooling and Servicing Agreement,
vest in the Trustee
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all interests which are purported to be conveyed thereby, free and
clear of any liens, security interests or encumbrances except as
specifically permitted pursuant to the Pooling and Servicing
Agreement.
(xiii) Immediately prior to the transfer of the Receivables to
the Trustee, the Seller's interest in the Receivables, the
Collateral Security (including the security interests in the
Vehicles securing the Receivables) and the proceeds of each of the
foregoing was perfected upon the filing of the UCC-1 financing
statement with the Secretary of State of the State of Michigan and
the Secretary of State of the State of New York and constituted a
perfected first priority interest therein, subject to the rights of
the Purchased Receivables Owners in the Collateral Security (other
than the Vehicles securing the Receivables). If a court concludes
that the transfer of the Receivables from the Seller to the Trustee
is a sale, the interest of the Trustee in the Receivables, the
Collateral Security (including the security interests in the
Vehicles securing the Receivables) and the proceeds of each of the
foregoing will be perfected upon the filing of the UCC-1 financing
statement, the form of which is attached to such opinion with the
Secretary of State of the State of Michigan and the Secretary of
State of the State of New York and will constitute a first priority
perfected interest therein, subject to the rights of the Purchased
Receivables Owners in the Collateral Security (other than the
Vehicles securing the Receivables). If a court concludes that such
transfer is not a sale, the Pooling and Servicing Agreement
constitutes a grant by the Seller to the Trustee of a valid security
interest in the Receivables, the Collateral Security (including the
security interests in the Vehicles securing the Receivables) and the
proceeds of each of the foregoing, which security interest is
perfected upon the filing of the UCC-1 financing statement the form
of which is attached to such opinion with the Secretary of State of
the State of Michigan and the Secretary of State of the State of New
York and will constitute a first priority perfected security
interest therein, subject to the rights of the Purchased Receivables
Owners in the Collateral Security (other than the Vehicles securing
the Receivables). No filing or other action, other than the filing
of the
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UCC-l financing statements with the Secretary of State of the State
of Michigan and the Secretary of State of the State of New York
referred to above, is necessary to perfect and maintain the interest
of the Trustee in the Receivables, the Collateral Security
(including the security interests in the Vehicles securing the
Receivables) and the proceeds of each of the foregoing against third
parties.
(xiv) The Receivables are chattel paper as defined in the
Uniform Commercial Code.
(xv) The Pooling and Servicing Agreement and the Receivables
Purchase Agreement conform in all material respects with the
description thereof contained in the Registration Statement and the
Prospectus and any supplement thereto.
(xvi) The statements in the Registration Statement and the
Prospectus under the heading "Risk Factors-- Certain Legal Aspects"
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.
(xvii) The statements contained in the Prospectus and any
supplement thereto under the captions "The Certificates" and "Series
Provisions", insofar as such statements constitute a summary of the
Certificates and the Pooling and Servicing Agreement, constitute a
fair summary of such documents.
(xviii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated in this Agreement, the
Receivables Purchase Agreement and the Pooling and Servicing
Agreement, except such filings with respect to the transfer of the
Receivables to the Seller pursuant to the Receivables Purchase
Agreement, and the transfer of the Receivables to the Trustee acting
on behalf of the Trust pursuant to the Pooling and Servicing
Agreement, as have been made and such other approvals as have been
obtained.
(xix) Such counsel is familiar with the Company's standard
operating procedures relating to the Company's
16
acquisition of a perfected first priority security interest in the
vehicles financed by the Servicer pursuant to wholesale automobile
revolving credit agreements in the ordinary course of the Servicer's
business. Assuming that the Company's standard procedures are
followed with respect to the perfection of security interests in the
Vehicles (and such counsel has no reason to believe that the Company
has not or will not continue to follow its standard procedures in
connection with the perfection of security interests in the
Vehicles), the Company has acquired or will acquire a perfected
first priority security interest in the Vehicles.
(xx) All actions required to be taken and all filings
required to be made under the Securities Act and the Exchange Act
prior to the sale of the Certificates have been duly taken or made.
(xxi) The Pooling and Servicing 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.
(xxii) The Seller is not, and will not as a result of the
offer and sale of the Certificates as contemplated in the Prospectus
and this Agreement become, an "investment company" as defined in the
Investment Company Act or a company "controlled by" an "investment
company" within the meaning of the Investment Company Act.
(xxiii) To the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or threatened
which are required to be disclosed in the Registration Statement,
other than those disclosed therein.
(xxiv) 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 included or incorporated by reference as
exhibits thereto, in order to make the statements therein not
misleading, the descriptions
17
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.
(xxv) The Registration Statement has become effective under
the Securities Act, any required filing of 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 of the 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 and the Rules and Regulations.
(xxvi) Such counsel has examined the Registration Statement and
the Prospectus, and nothing has come to such counsel's attention
that would lead such counsel to believe that the Registration
Statement or the Prospectus or any amendment or supplement thereto
as of the respective dates thereof (other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need not express any view)
contains an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein not
misleading.
(f) You shall have received an opinion of Xxxxxxxxxxx X.
Xxxxxxxxx, Vice President and General Counsel of the Company and the Seller,
addressed to you and the Trustee, dated the Closing Date and satisfactory in
form and substance to you and your counsel, to the effect that the statements
in the Registration Statement and the Prospectus under the heading "Certain
Tax Matters--State and Local Tax Consequences" accurately describe the
material Michigan tax consequences to holders of the Certificates.
18
(g) [ ], special counsel to the Seller, shall have
delivered an opinion, dated the Closing Date, with respect to the
characterization of the transfer of the Receivables.
(h) You shall have received an opinion of [ ],
addressed to you, dated the Closing Date, (i) in its capacity as your special
counsel, with respect to the validity of the Certificates and such other
related matters as you shall require and (ii) in its capacity as Federal tax
and ERISA counsel for the Seller and the Trust, to the effect that the
statements in the Registration Statement and the Prospectus under the heading
"Certain Tax Matters" (other than "State and Local Tax Consequences")
accurately describe the material Federal income tax consequences to holders
of the Certificates, and the statements in the Registration Statement and the
Prospectus under the heading "ERISA Considerations", to the extent that they
constitute statements of matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and accurately
describe the material consequences to holders of the Certificates under
ERISA.
(i) You shall have received an opinion addressed to you,
the Seller and the Servicer of [
], counsel to the Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel, to the effect
that:
(i) The Trustee is a banking corporation duly incorporated
and validly existing under the laws of the State of New York.
(ii) The Trustee has the full corporate trust power to
accept the office of trustee under the Pooling and Servicing
Agreement and to enter into and perform its obligations under the
Pooling and Servicing Agreement.
(iii) The execution and delivery of the Pooling and
Servicing Agreement and the performance by the Trustee of its
obligations under the Pooling and Servicing Agreement have been duly
authorized by all necessary corporate action of the Trustee.
19
(iv) The Pooling and Servicing Agreement constitutes a
valid and binding obligation of the Trustee enforceable against the
Trustee in accordance with its terms under the law of the State of
New York and the Federal law of the United States.
(v) The execution and delivery by the Trustee of the
Pooling and Servicing Agreement does not require any consent,
approval or authorization of, or any registration or filing with,
any New York or United States Federal governmental authority.
(vi) Each of the Certificates has been duly executed by the
Trustee as trustee and authenticating agent.
(j) You shall have received certificates dated the Closing
Date of any two of the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the principal financial
officer, or the principal accounting officer of each of the Seller and the
Company in which such officers shall state that, to the best of their
knowledge after reasonable investigation, (i) the representations and
warranties of the Seller, the Company or CCC, as the case may be, contained
in the Receivables Purchase Agreement and the Pooling and Servicing
Agreement, respectively, are true and correct, that the Seller, the Company
or CCC, 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 December 31, 199[ ], except as may be disclosed in
the Prospectus or, in the case of Chrysler Corporation, as may be disclosed
publicly by Chrysler Corporation prior to the execution of this Agreement, no
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of
the Trust, the Seller, the Company or Chrysler Corporation 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 New York
20
reflecting the transfer of the interest of the Company in the Receivables and
the proceeds thereof to the Seller, and the transfer of the interest of the
Seller in the Receivables and the proceeds thereof to the Trustee.
(l) The Certificates shall have been rated ["[ ]" by
Standard and Poor's Ratings Group, "[ ]" by Xxxxx'x Investors Service,
Inc., "[ ]" by Xxxx & Xxxxxx, Inc., and "[ ]" by Fitch Investors
Service, Inc.]
(m) No Early Amortization Event or Reinvestment Event or
other event or condition, which event or condition with notice, the passage
of time or both would result in an Early Amortization Event or Reinvestment
Event, shall have occurred or shall exist with respect to any outstanding
Series on the Closing Date.
The Seller will provide or cause to be provided to you such
conformed copies of such opinions, certificates, letters and documents as you
reasonably request.
8. Indemnification and Contribution. (a) The Seller and the
Company will, jointly and severally, indemnify and hold each Underwriter
harmless against any losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) ariseout of or are based upon any
untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus, or any amendment, exhibit or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or 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 such indemnified party for
any legal or other expenses reasonably incurred by such party in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that neither the
Seller nor the Company will be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to
21
the Seller by any 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 Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus or any amendment, exhibit or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Seller by 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 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under subsection (a) or (b) above. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
22
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 8
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 indemnifying party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Seller on the one hand and the Underwriters on the
other from the offering of the Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Seller on
the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Seller on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Seller
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Seller or by any Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter (except as may be provided in the agreement
among Underwriters relating to the offering of the Certificates) shall be
required to contribute any amount in excess of the underwriting discount or
commission applicable
23
to the Certificates purchased by such Underwriter hereunder. 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.
(e) The obligations of the Seller and the Company under
this Section 8 shall be in addition to any liability which the Seller or the
Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Securities Act; and the obligations of any Underwriter under
this Section shall be in addition to any liability which such Underwriter may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Seller, to each officer of the Seller who has signed the
Registration Statement and to each person, if any, who controls the Seller
within the meaning of the Securities Act.
9. Defaults by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Certificates
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the amount of Certificates set forth opposite their names in Schedule I
hereto bears to the aggregate amount of Certificates set forth opposite the
names of all the remaining Underwriters) the Certificates which the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Certificates which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount of
Certificates set forth in Schedule I hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Certificates, and if such nondefaulting Underwriters do
not purchase all the Certificates, this Agreement will terminate without
liability to any nondefaulting Underwriter, the Trust or the Seller. In the
event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Underwriters shall determine in order that the required changes in the
Registration
24
Statement and the Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Seller and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10. No Bankruptcy Petition. Each Underwriter covenants and
agrees that, prior to the date which is one year and one day after the
payment in full of all securities issued by the Seller or by a trust for
which the Seller was the depositor which securities were rated by any
nationally recognized statistical rating organization, it will not institute
against, or join any other Person in instituting against, the Seller any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any Federal or state bankruptcy or
similar law.
11. Survival of Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller or its officers and the Company or its officers and
of the Underwriters set forth in or made pursuant to this Agreement or
contained in certificates of officers of the Seller submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation or statement as to the results thereof, made by or on behalf of
any Underwriter or of the Seller or the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates. If for any reason the
purchase of the Certificates by the Underwriters is not consummated, the
Seller shall remain responsible for the expenses to be paid or reimbursed by
the Seller pursuant to Section 6 and the respective obligations of the Seller
and the Underwriters pursuant to Section 8 shall remain in effect. If for any
reason the purchase of the Certificates by the Underwriters is not
consummated (other than because of a failure to satisfy the conditions set
forth in items (ii), (iii) and (iv) of Section 7(d)), the Seller will
reimburse the Underwriters severally, upon demand, for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
any Underwriter in connection with the offering of the Certificates. Nothing
contained in this Section 11 shall limit the recourse of the Seller against
the Underwriters.
25
12. Notices. All communications hereunder will be
in writing and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representative at [ ],
Attention: [ ]; and, if sent to the Seller, will be mailed,
delivered or telegraphed and confirmed to it at U.S. Auto Receivables Company,
00000 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Secretary.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 8,
and no other person will have any rights or obligations hereunder.
14. Applicable Law. This Agreement will be governed by,
and construed in accordance with, the laws of the State of New York.
15. Severability of Provisions. Any covenant, provision,
agreement or term of this Agreement that is prohibited or is held to be void
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
16. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the matters
and transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever relating to such matters and transactions.
17. Amendment. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
18. Headings. The headings in this Agreement are
for the purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
19. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which
shall together constitute one instrument.
26
20. Representation. You will act for the several
Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by you will be binding
upon all the Underwriters.
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,
U.S. AUTO RECEIVABLES COMPANY,
By:
-------------------------------
Name:
Title:
CHRYSLER FINANCIAL CORPORATION,
By:
-------------------------------
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of
the date first written above.
[ ],
on behalf of itself and
as Representative of the several
Underwriters
By:
-----------------------------
Name:
Title:
