Exhibit 1.1(B)
Form of Certificate
Underwriting Agreement
CHASE MANHATTAN AUTO OWNER TRUST 200_-_
ASSET BACKED CERTIFICATES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Seller and Servicer
CERTIFICATE UNDERWRITING AGREEMENT
__________ __, 200_
[______________________]
As Representative of the
Several Underwriters,
[______________________]
[______________________]
Ladies and Gentlemen:
1. Introductory. Chase Manhattan Bank USA, National Association, a
national banking association (the "Bank"), proposes to form Chase Manhattan
Auto Owner Trust 200_-_ (the "Trust") to sell $___________ aggregate principal
amount of ____% Asset Backed Certificates (the "Certificates"), each
representing a fractional undivided interest in the Trust.
The assets of the Trust will include, among other things, a pool of
simple interest retail installment sales contracts and purchase money notes
and other notes (the "Receivables") secured by new and used automobiles (the
"Financed Vehicles") and certain monies received thereunder on or after the
Cutoff Date (as hereinafter defined), such Receivables to be transferred to
the Trust and serviced by the Bank, as Servicer, or by a successor Servicer.
The Original Pool Balance of the Receivables as of the opening of business on
_________ __, 200_ (the "Cut-off Date") was equal to $[______________]. The
Certificates will be issued pursuant to the Amended and Restated Trust
Agreement to be dated as of _________ __, 200_ (as amended and supplemented
from time to time, the "Trust Agreement"), between the Bank and ____________,
as owner trustee (the "Owner Trustee").
Simultaneously with the issuance and sale of the Certificates as
contemplated herein, the Trust will issue $_____________ aggregate principal
amount of Class A-1 ____% Asset Backed Notes (the "Class A-1 Notes"),
$_____________ aggregate principal amount of Class A-2 ____% Asset Backed
Notes (the "Class A-2 Notes"), $_____________ aggregate principal amount of
Class A-3 ____% Asset Backed Notes (the "Class A-3 Notes") and $_____________
aggregate principal amount of Class A-4 ____% Asset Backed Notes (the "Class
A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, the "Notes"), pursuant to the Indenture to be dated as of
__________ __, 200_ (as amended and supplemented from time to time, the
"Indenture"), between the Trust and
_________________, _____________, as indenture trustee (the "Indenture
Trustee"), which will be sold pursuant to an underwriting agreement dated the
date hereof (the "Note Underwriting Agreement"; together with this Agreement,
the "Underwriting Agreements") among the Bank and the underwriters named
therein (the "Note Underwriters"). The Notes and the Certificates are
sometimes referred to collectively herein as the "Securities".
Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Sale and Servicing Agreement to be
dated as of ____________ __, 200_ (as amended and supplemented from time to
time, the "Sale and Servicing Agreement"), between the Trust and the Bank, as
Seller and Servicer.
This is to confirm the agreement concerning the purchase of the
Certificates from the Bank by the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom _______________ is acting as
representative (the "Representative").
2. Representations and Warranties of the Bank. The Bank represents
and warrants to, and agrees with, the Underwriters, that:
(a) A registration statement on Form S-3 (No. 333-_____) has been
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"Act"), and the Rules and Regulations under the Act (the "Rules and
Regulations"). Such registration statement, as amended on the date that such
registration statement or the most recent post-effective amendment thereto
became effective under the Act, including the exhibits thereto, is hereinafter
referred to as the "Registration Statement." The Registration Statement has
become effective, and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has
been instituted or, to the knowledge of the Bank, threatened by the
Commission. The conditions to the use of a registration statement on Form S-3
under the Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 of the Rules and Regulations, have been satisfied with
respect to the Registration Statement. The Bank proposes to file with the
Commission pursuant to Rule 424(b) of the Rules and Regulations a prospectus
supplement to the Base Prospectus (as defined herein) relating to the sale of
the Securities (the "Prospectus Supplement"). The base prospectus filed as
part of the Registration Statement, in the form it appears in the Registration
Statement, or in the form most recently revised and filed with the Commission
pursuant to Rule 424(b), is hereinafter referred to as the "Base Prospectus."
The Base Prospectus as supplemented by the Prospectus Supplement is
hereinafter referred to as the "Prospectus."
(b) Except to the extent that the Representative shall have agreed
to a modification, the Prospectus shall be in all substantive respects in the
form furnished to the Representative prior to the execution of this Agreement
or, to the extent not completed at such time, shall contain only such material
changes as the Bank has advised the Representative, prior to such time, will
be included or made therein.
(c) The Registration Statement, at the time it became effective, and
the Prospectus, as of the date of the Prospectus Supplement, complied in all
material respects with the applicable requirements of the Act and the Trust
Indenture Act of 1939 and the Rules and
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Regulations and did not include any untrue statement of a material fact and,
in the case of the Registration Statement, did not omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and, in the case of the Prospectus, did not omit to state any
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; on the Closing
Date (as defined herein), the Registration Statement and the Prospectus, as
amended or supplemented as of the Closing Date, will comply in all material
respects with the applicable requirements of the Act and the Rules and
Regulations, and neither the Prospectus nor any amendment or supplement
thereto will include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided,
however, that the Bank makes no representation and warranty with respect to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon, or in conformity with, information furnished in
writing to the Bank by or on behalf of any Underwriter through the
Representative specifically for use in connection with the preparation of the
Registration Statement or the Prospectus.
(d) The Bank is a national banking association organized under the
laws of the United States, with full power and authority to own its properties
and conduct its business as described in the Prospectus, and had at all
relevant times and has power, authority and legal right to acquire, own, sell
and service the Receivables.
(e) When the Notes have been duly executed and delivered by the
Owner Trustee and, when authenticated by the Indenture Trustee in accordance
with the Indenture and delivered upon the order of the Bank to the Note
Underwriters pursuant to the Note Underwriting Agreement and the Sale and
Servicing Agreement, the Notes will be duly issued and will constitute legal,
valid and binding obligations of the Trust enforceable against the Trust in
accordance with their terms, except to the extent that the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
conservatorship, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights as such laws would apply in the event of the
insolvency, liquidation or reorganization or other similar occurrence with
respect to the Bank or the Trust or in the event of any moratorium or similar
occurrence affecting the Bank or the Trust and to general principles of
equity.
(f) The direction by the Bank to the Owner Trustee to execute and
authenticate the Certificates has been duly authorized by the Bank and, when
the Certificates have been duly executed, authenticated and delivered by the
Owner Trustee in accordance with the Trust Agreement and delivered upon the
order of the Bank to the Underwriters pursuant to this Agreement and the Sale
and Servicing Agreement, the Certificates will be duly issued and entitled to
the benefits and security afforded by the Trust Agreement.
(g) The execution, delivery and performance by the Bank of this
Agreement, the Note Underwriting Agreement and the Basic Documents to which
the Bank is a party, and the consummation by the Bank of the transactions
provided for herein and therein have been, or will have been, duly authorized
by the Bank by all necessary action on the part of the Bank; and neither the
execution and delivery by the Bank of such instruments, nor the performance by
the Bank of the transactions herein or therein contemplated, nor the
compliance by the Bank with the provisions hereof or thereof, will (i)
conflict with or result in a breach or violation of any of the
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material terms and provisions of, or constitute a material default under, any
of the provisions of the articles of association or by-laws of the Bank, (ii)
conflict with any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Bank or its properties, (iii)
conflict with any of the material provisions of any material indenture,
mortgage, contract or other instrument to which the Bank is a party or by
which it is bound, or (iv) result in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any
such indenture, mortgage, contract or other instruments, except, in the case
of clauses (ii) and (iii), for any such breaches or conflicts as would not
individually or in the aggregate have a material adverse effect on the
transactions contemplated hereby or on the ability of the Bank to consummate
such transactions.
(h) When executed and delivered by the parties thereto, each of the
Sale and Servicing Agreement and the Trust Agreement will constitute a legal,
valid and binding obligation of the Bank, enforceable against the Bank in
accordance with its terms, except to the extent that the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
conservatorship, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights as such laws would apply in the event of the
insolvency, liquidation or reorganization or other similar occurrence with
respect to the Bank or in the event of any moratorium or similar occurrence
affecting the Bank and to general principles of equity.
(i) All approvals, authorizations, consents, orders or other actions
of any person, corporation or other organization, or of any court,
governmental agency or body or official (except with respect to the state
securities or "blue sky" laws of various jurisdictions), if so required in
connection with the execution, delivery and performance of this Agreement, the
Note Underwriting Agreement and the Basic Documents to which the Bank is a
party has been or will be taken or obtained on or prior to the Closing Date.
(j) As of the Closing Date, the representations and warranties of
the Bank, as Seller and Servicer, in the Trust Agreement will be true and
correct.
(k) This Agreement and the Note Underwriting Agreement have been
duly executed and delivered by the Bank.
3. Purchase, Sale, Payment and Delivery of the Certificates. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Bank agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly,
to purchase from the Bank, at a purchase price of ______% of the face amount
thereof, the principal amount of the Certificates set forth opposite the name
of such Underwriter in Schedule I hereto plus accrued interest at the
Certificate Rate from __________ __, 200_ to but excluding the Closing Date.
The Bank will deliver the Certificates to the Representative for the
respective accounts of the Underwriters against payment of the purchase price
in immediately available funds drawn to the order of the Bank at the offices
of Xxxxxxx Xxxxxxx & Xxxxxxxx in New York, New York at 10:00 a.m., New York
City time, on __________ __, 200_ or at such other time not later than seven
full business days thereafter as the Representative and the Bank determine,
such time being herein referred to as the "Closing Date." The Certificates to
be so delivered will be
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initially represented by one or more definitive Certificates registered in the
name of Cede & Co., the nominee of The Depository Trust Company ("DTC")[,
except for a Certificate registered in the name of ____________ in an amount
of $_______,] and will be made available for inspection by the Representative
at the office where delivery and payment for such Certificates is to take
place no later than 1:00 p.m., New York City time, on the Business Day prior
to the Closing Date.
4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Certificates for sale to the public (which
may include selected brokers and dealers) as set forth in the Prospectus.
5. Covenants of the Bank. The Bank covenants and agrees with the
Underwriters that:
(a) The Bank will file the Prospectus with the Commission pursuant
to Rule 424(b) of the Rules and Regulations within the time prescribed therein
and will provide evidence satisfactory to the Representative of such timely
filing. During any period that a prospectus relating to the Certificates is
required to be delivered to purchasers of the Certificates by the Underwriters
and dealers participating in the initial offering and sale of the Certificates
on the Closing Date under the Act [(without regard to any market making
prospectus required to be delivered by any Underwriter pursuant to the Act)]
(a "prospectus delivery period"), the Bank will not file any amendments to the
Registration Statement, or any amendments or supplements to the Prospectus,
unless it shall first have delivered copies of such amendments or supplements
to the Representative, and if the Representative shall have reasonably
objected thereto promptly after receipt thereof; the Bank will promptly advise
the Representative or its counsel (i) when notice is received from the
Commission that any post-effective amendment to the Registration Statement has
become or will become effective, (ii) of any request by the Commission for any
amendment or supplement to the Registration Statement or the Prospectus or for
any additional information and (iii) of any order or communication suspending
or preventing, or threatening to suspend or prevent, the offer and sale of the
Certificates or of any proceedings or examinations that may lead to such an
order or communication, whether by or of the Commission or any authority
administering any state securities or "blue sky" law, as soon as the Bank is
advised thereof, and will use its reasonable efforts to prevent the issuance
of any such order or communication and to obtain as soon as possible its
lifting, if issued.
(b) If, at any time during the prospectus delivery period, 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 in order 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 Prospectus in order to comply with the Act
or the Rules and Regulations, the Bank promptly will prepare and file with the
Commission (subject to the Representative's prior review pursuant to paragraph
(a) of this Section 5), an amendment or supplement which will correct such
statement or omission or an amendment or supplement which will effect such
compliance.
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(c) The Bank will furnish to the Representative copies of the
Registration Statement, each preliminary prospectus supplement relating to the
Certificates, the Prospectus, and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Representative may reasonably request.
(d) The Bank will cooperate with the Representative in arranging for
the qualification of the Certificates for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as the
Representative designates and will cooperate in continuing such qualifications
in effect so long as required for the distribution of the Certificates;
provided, however, that neither the Bank nor the Trust shall be obligated to
qualify to do business in any jurisdiction in which it is not currently so
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
(e) For a period from the date of this Agreement until the
retirement of the Certificates, the Bank, as Servicer, will furnish to the
Representative copies of each certificate and the annual statements of
compliance delivered to independent certified public accountants' and reports
furnished to the Indenture Trustee or the Owner Trustee pursuant to the Sale
and Servicing Agreement, as soon as practicable after such statements and
reports are furnished to the Indenture Trustee or the Owner Trustee.
(f) So long as any of the Certificates is outstanding, the Bank will
furnish to the Representative as soon as practicable, (A) all documents
distributed, or caused to be distributed, by the Bank to the
Certificateholders, (B) all documents filed, or caused to be filed, by the
Bank with respect to the Trust with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and any order of the
Commission thereunder or pursuant to a "no-action" letter from the staff of
the Commission and (C) from time to time, such other information in the
possession of the Bank concerning the Trust and any other information
concerning the Bank filed with any governmental or regulatory authority which
is otherwise publicly available, as the Representative may reasonably request.
(g) On or before the Closing Date, the Bank shall cause its computer
records relating to the Receivables to be marked to show the Trust's absolute
ownership of the Receivables, and from and after the Closing Date neither the
Bank nor the Servicer shall take any action inconsistent with the Trust's
ownership of such Receivables and the security interest of the Indenture
Trustee therein, other than as permitted by the Sale and Servicing Agreement.
(h) To the extent, if any, that the rating provided with respect to
the Certificates by Xxxxx'x, Standard & Poor's and/or Fitch is conditional
upon the furnishing of documents or the taking of any other actions by the
Bank agreed upon on or prior to the Closing Date, the Bank shall furnish such
documents and take any such other actions.
(i) For the period beginning on the date hereof and ending on the
Closing Date, unless waived by the Representative, neither the Bank nor any
trust originated, directly or indirectly, by the Bank will offer to sell or
sell notes (other than the Notes) collateralized by, or certificates (other
than the Certificates) evidencing an ownership interest in, receivables
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generated pursuant to retail automobile or light-duty truck installment sale
contracts or purchase money loans.
6. Payment of Expenses. The Bank 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 Indenture Trustee's and Owner Trustee's
acceptance fee and the reasonable fees and disbursements of the counsel to the
Indenture Trustee and counsel to the Owner Trustee, (iii) the fees and
disbursements of _______________, (iv) the fees of the Rating Agencies and (v)
blue sky expenses; provided, however, that the Underwriters may reimburse the
Bank for certain expenses incurred by the Bank as agreed to by the
Underwriters and the Bank.
7. Conditions to the Obligations of the Underwriters. The obligation
of the several Underwriters to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of
the Bank herein on the date hereof and as of the Closing Date, to the accuracy
of the statements of officers of the Bank made pursuant to the provisions
hereof, to the performance by the Bank of its obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to the date hereof, the Representative shall have
received a letter (a "Procedures Letter"), dated the date of this
Agreement of _______________ verifying the accuracy of such financial and
statistical data contained in the Prospectus as the Representative shall
deem reasonably advisable. In addition, if any amendment or supplement to
the Prospectus made after the date hereof contains financial or
statistical data, the Representative shall have received a letter dated
the Closing Date confirming each Procedures Letter and providing
additional comfort on such new data.
(b) The Prospectus Supplement shall have been filed in the manner
and within the time period required by Rule 424(b) of the Rules and
Regulations; 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 threatened.
(c) 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 Bank, JPMorgan Chase or X.X. Xxxxxx Xxxxx & Co.
which, in the reasonable judgment of the Representative, materially
impairs the investment quality of the Certificates or makes it
impractical to market the Certificates; (ii) any suspension or material
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 the Bank, JPMorgan
Chase or X.X. Xxxxxx Xxxxx & Co. on any exchange or in the
over-the-counter market by such exchange or over-the-counter market or by
the Commission; (iii) any banking moratorium declared by federal or New
York authorities; or (iv) any outbreak or material escalation of major
hostilities or any other substantial national or international calamity
or emergency if, in the reasonable judgment of the Representative, the
effect of any such outbreak, escalation, calamity or emergency on the
United States financial markets makes
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it impracticable or inadvisable to proceed with completion of the sale of
and any payment for the Certificates.
(d) The Representative shall have received opinions, dated the
Closing Date and reasonably satisfactory, when taken together, in form
and substance to the Representative, of Xxxxxxx Xxxxxxx & Xxxxxxxx,
special counsel to the Bank, Xxxxxxxx, Xxxxxx & Finger, P.A., special
counsel to the Trust, and such other counsel otherwise reasonably
acceptable to the Representative, with respect to such matters as are
customary for the type of transaction contemplated by this Agreement.
(e) The Representative shall have received an opinion or opinions of
Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Bank, dated the
Closing Date and reasonably satisfactory in form and substance to the
Representative, with respect to certain matters relating to the transfer
of the Receivables from the Bank to the Trust by the Federal Deposit
Insurance Corporation and with respect to a grant of a security interest
in the Receivables to the Indenture Trustee, and an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., special counsel to the Bank, with respect to the
perfection of the Trust's and the Indenture Trustee's interests in the
Receivables.
(f) The Representative shall have received from Sidley Xxxxxx Xxxxx
& Wood LLP, counsel to the Underwriters, such opinion or opinions, dated
the Closing Date and satisfactory in form and substance to the
Representative, with respect to the validity of the Certificates, the
Registration Statement, the Prospectus and other related matters as the
Representative may require, and the Bank shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Representative shall have received an opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx, special tax counsel to the Bank, dated the Closing
Date and reasonably satisfactory in form and to the effect (a) that under
current law the Notes will be characterized as debt, and the Trust will
not be characterized as an association (or a publicly traded partnership)
taxable as a corporation for United States federal income tax purposes
and (b) that, subject to the qualifications set forth therein, the
statements made in the Prospectus Supplement under the caption "Certain
Federal Income Tax Consequences" insofar as they purport to constitute
summaries of matters of United States federal tax law and regulations or
legal conclusions with respect thereto, constitute accurate summaries of
the matters described therein in all material respects.
(h) The Representative shall have received an opinion of
_______________, special counsel to the Owner Trustee, and such other
counsel reasonably satisfactory to the Representative and its counsel,
dated the Closing Date and satisfactory in form and substance to the
Representative, with respect to such matters as are customary for the
type of transaction contemplated by this Agreement.
(i) The Certificates have been rated "__" by Standard & Poor's, "__"
by Xxxxx'x and "__" by Fitch.
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(j) The Representative shall have received a certificate, dated the
Closing Date, of an attorney-in-fact, a Vice President or more senior
officer of the Bank in which such person, to the best of his or her
knowledge after reasonable investigation, shall state that (i) the
representations and warranties of the Bank in this Agreement are true and
correct in all material respects on and as of the Closing Date, (ii) the
Bank has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, (iii) the representations and warranties of the Bank, as Seller and
Servicer, in the Sale and Servicing Agreement and, as Depositor, in the
Trust Agreement, are true and correct as of the dates specified in the
Sale and Servicing Agreement and the Trust Agreement, (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
threatened by the Commission, (v) subsequent to the date of the
Prospectus, there has been no material adverse change in the financial
position or results of operation of the Bank's automotive finance
business except as set forth in or contemplated by the Prospectus or as
described in such certificate and (vi) the Prospectus does not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(k) On the Closing Date, all of the Notes shall have been issued and
sold pursuant to the Note Underwriting Agreement.
(l) The Class A-1 Notes shall have been rated "___" by Standard &
Poor's, "___" by Xxxxx'x and "___" by Fitch, and the Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes shall have been rated "___" by
Standard & Poor's, "___" by Xxxxx'x and "___" by Fitch.
(m) On the Closing Date, the Class R Certificate shall have been
issued to Chase USA pursuant to the Trust Agreement.
The Bank will furnish the Representative, or cause the
Representative to be furnished, with such number of conformed copies of such
opinions, certificates, letters and documents as the Representative reasonably
requests.
8. Indemnification. (a) The Bank will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, to which
such Underwriter may become subject, under the 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 any preliminary prospectus
supplement, the Registration Statement, the Prospectus (other than any market
making prospectus) or any amendment or supplement thereto, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that
(i) the Bank shall 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 or omission or alleged omission made in
any
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preliminary prospectus supplement, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Bank by any Underwriter
through the Representative expressly for use therein and (ii) such indemnity
with respect to any preliminary prospectus supplement shall not inure to the
benefit of any Underwriter (or any person controlling any such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Certificates which are the subject thereof if such person did
not receive a copy of the Prospectus (or the Prospectus as supplemented) at or
prior to the confirmation of the sale of such Certificates to such person in
any case where such delivery is required by the Act and the untrue statement
or omission of a material fact contained in such preliminary prospectus
supplement was corrected in the Prospectus (or the Prospectus as
supplemented).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Bank, its directors, each of its officers or agents who signed the
Registration Statement, and each person, if any, who controls the Bank within
the meaning of Section 15 of the Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section 8, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in any
preliminary prospectus supplement, the Registration Statement or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Bank by such Underwriter
through the Representative expressly for use in such preliminary prospectus
supplement, the Registration Statement or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability which it may have hereunder or otherwise, other than on account of
this indemnity agreement. In case any such action shall be brought against an
indemnified party and it shall have notified the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party with respect to such action), and it being understood that
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys,
and, after notice from the indemnifying party to the indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to the indemnified party under subsections (a) or (b) of this Section 8
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by the indemnified party, in connection with the defense
thereof other than reasonable costs of investigation.
(d) The obligations of the Bank under this Section 8 shall be in
addition to any liability which the Bank 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 Act; and each Underwriter's obligations
under this Section 8 shall be in addition to any liability which
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such Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Bank and to each person, if
any, who controls the Bank within the meaning of Section 15 of the Act.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 is for any reason held to be unavailable other than in accordance
with its terms, the Bank and the Underwriters shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Bank or the
Underwriters, as incurred, in such proportions so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount and commissions bear to the initial public offering
price appearing thereon and the Bank is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Act shall have the same rights to
contribution as such Underwriter, and each director of the Bank, each officer
or agent of the Bank who signed the Registration Statement, and each person,
if any, who controls the Bank within the meaning of Section 15 of the Act
shall have the same rights to contribution as the Bank.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Bank or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation or statement as to the results thereof, made
by or on behalf of the Underwriters, the Bank 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 Bank
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 6 and the respective obligations of the Bank and the
Underwriters pursuant to Sections 8 and 9 shall remain in effect. If the
purchase of the Certificates by the Underwriters is not consummated for any
reason other than solely because of the occurrence of any event specified in
clauses (ii), (iii) or (iv) of Section 7(c), the Bank will reimburse each
Underwriter for all out-of-pocket expenses (including fees and disbursements
of counsel) reasonably incurred by it in connection with the offering of the
Certificates.
11. Notices. All communications hereunder will be in writing and, if
sent to the Representative or the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representative at
___________________________________, Attention: _____________, or, if sent to
the Bank, will be mailed, delivered, or telegraphed and confirmed to Chase
Manhattan Bank USA, National Association, c/o Chase Manhattan Automotive
Finance Corporation, 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Financial Controller.
12. Successors. This Agreement will inure to the benefit of, and be
binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than
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the parties hereto and their respective successors and the controlling persons
and officers and directors referred to in Sections 8 and 9 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Certificates from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
13. 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.
14. 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 Trust, it will not institute against, or
join any other person in instituting against, the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or state bankruptcy or similar law.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to us the enclosed
duplicate hereof, whereupon it will become a binding agreement among the Bank
and the several Underwriters in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
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 named
in Schedule I
By_______________________
Name:
Title:
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SCHEDULE I
Underwriter Principal Amount of Certificates
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