Exhibit 1.1(A)
Form of Certificate
Underwriting Agreement
(Grantor Trust)
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Seller and Servicer
CHASE MANHATTAN AUTO GRANTOR TRUST 200_-_
$____________ __% Automobile Loan Pass-Through Certificates, Class A
$____________ __% Automobile Loan Pass-Through Certificates, Class B
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 Grantor Trust 200_-_ (the "Trust") pursuant to a Pooling and Servicing
Agreement between the Bank, as Seller and Servicer, _____________________, as
Trustee (the "Trustee") and Collateral Agent (the "Collateral Agent"), dated
as of __________ __, 200_ (the "Pooling and Servicing Agreement"), which will
issue its $_____________ ____% Automobile Loan Pass-Through Certificates,
Class A Certificates (the "Class A Certificates") and $_____________ ____%
Automobile Loan Pass-Through Certificates, Class B Certificates (the "Class B
Certificates" and, together with the Class A Certificates, the "Certificates").
Each Certificate will represent 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 "Cutoff Date") was $________________. In addition, the
Seller will establish a reserve account (the "Reserve Account") with an
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initial deposit of cash or certain investments having an aggregate value of
$__________, which Reserve Account will be pledged to the Collateral Agent for
the benefit of the Certificateholders pursuant to the Agreement. Capitalized
terms used herein and not otherwise herein defined shall have the meanings
assigned to such terms in the Pooling and Servicing Agreement.
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 Certificates (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) of the
Rules and Regulations, 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
Rules and 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
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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) On the Closing Date, the Certificates will have been duly and
validly authorized and, when such Certificates are duly and validly
executed by or on behalf of the Bank, authenticated by the Trustee and
delivered in accordance with the Pooling and Servicing Agreement and
delivered and paid for as provided herein, will be validly issued and
outstanding and entitled to the benefits and security afforded by the
Pooling and Servicing Agreement.
(f) The execution, delivery and performance by the Bank of this
Agreement and the Pooling and Servicing Agreement, 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 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 and the Trust to consummate such transactions.
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(g) When executed and delivered by the parties thereto, the Pooling
and Servicing 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.
(h) 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), required in
connection with the execution, delivery and performance of this Agreement
and the Pooling and Servicing Agreement has been or will be taken or
obtained on or prior to the Closing Date.
(i) As of the Closing Date, the representations and warranties of
the Bank, as Seller and Servicer, in the Pooling and Servicing Agreement
will be true and correct.
(j) This Agreement has been duly executed and delivered by the Bank.
3. Purchase, Sale, Payment 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 Bank agrees to sell to the
Underwriters, and the Underwriters, severally and not jointly, agree to
purchase from the Bank (a) at a purchase price of _____________% of the
principal amount thereof, the respective principal amounts of the Class A
Certificates set forth opposite the names of the Underwriters in Schedule I
hereto and (b) at a purchase price of _____________% of the principal amount
thereof, the respective principal amounts of the Class B Certificates set
forth opposite the names of the Underwriters in Schedule I hereto, plus in
each case accrued interest at the applicable Pass-Through 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 shall be initially represented by one or more definitive Class
A Certificates in the initial amount of $_____________ registered in the name
of Cede & Co., as nominee for The Depository Trust Company, and one or more
definitive Class B Certificates in the initial amount of $_____________
registered in the name of Cede & Co., as nominee for The Depository Trust
Company. The Bank shall make such definitive certificates representing the
Certificates available for inspection by the Representative at the office at
which the Certificates are to be delivered no later than 12:00 noon, New York
City time, on the business day prior to the Closing Date.
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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. Certain Agreements 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 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.
(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
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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
pursuant to Article IV of the Pooling and Servicing Agreement and the
annual independent public accountant's reports furnished to the Trustee
pursuant to Article IV of the Pooling and Servicing Agreement, as soon as
practicable after such statements and reports are furnished to such
certified public accountants or the Trustee, as the case may be.
(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 the Bank shall not, as Seller or Servicer, take any action
inconsistent with the Trust's ownership of such Receivables, other than
as permitted by the Pooling and Servicing Agreement.
(h) To the extent, if any, that the rating provided with respect to
the Certificates by Standard & Poor's, Xxxxx'x and/or Fitch is
conditional upon the furnishing of documents or the taking of any other
action by the Bank agreed upon on or prior to the Closing Date, the Bank
shall furnish such documents and take any such action.
(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 collateralized by, or certificates (other than the
Certificates) evidencing an ownership interest in, receivables generated
pursuant to retail automobile or light duty truck installment sale
contracts.
6. Payment of Expenses. The Bank will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
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printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the Trustee's acceptance fee and the reasonable
fees and disbursements of the counsel to the 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 _____________ and _____________ 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, The Chase Manhattan Bank or The Chase
Manhattan Corporation 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, The Chase Manhattan Bank 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 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 and/or such other counsel otherwise
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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 transfers
of the Receivables from the Bank to the Trust, and an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Bank, with
respect to the perfection of the Trust's interests in the Receivables and
with respect to certain other matters as are customary for the type of
transaction contemplated by this Agreement.
(f) The Representative shall have received from Xxxxx & Xxxx 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 substance to the
Representative, with respect to such matters as are customary for the
type of transaction contemplated by this Agreement.
(h) The Representative shall have received an opinion of counsel to
the Trustee and the Collateral Agent (collectively, "________"), dated
the Closing Date and reasonably satisfactory in form and substance to the
Representative, substantially to the effect that:
(i) ___________ has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of
the [______________________];
(ii) ___________ has full corporate trust power and authority
to enter into and perform its obligations under the Pooling and
Servicing Agreement;
(iii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by __________ and constitutes a
valid and legally binding agreement of ________, enforceable against
_______ in accordance with its terms, subject, as to enforcement of
remedies, (a) to applicable bankruptcy, insolvency, reorganization,
and other similar laws affecting the rights of creditors generally,
and (b) to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iv) _______ has duly executed and authenticated the
Certificates issued on the date hereof on behalf of the Trust;
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(v) No consent, approval or authorization of, or registration,
declaration or filing with, or giving of notice to or the taking of
any other act with respect to any court or governmental authority,
agency or body of the United States of America or of any state
governing the trust powers of ________ is required under any
existing laws or regulation for the consummation on the part of
_______ of any of the transactions contemplated in the Pooling and
Servicing Agreement or the performance by ________ thereunder,
except such as have been obtained; and
(vi) The execution and delivery of the Pooling and Servicing
Agreement and the performance by _________ of the terms thereof do
not conflict with or result in a violation of (1) any laws or
regulations of [___________________] or of any state governing the
trust powers of __________, (2) the Articles of Incorporation or
By-Laws of _________ or (3) any material agreement, instrument,
order, writ, judgment or decree known to such counsel to which
___________ is a party or is subject.
In rendering such opinions, counsel to ___________ may rely on the
opinion of the office of the general counsel to _______.
(i) The Representative shall have received evidence satisfactory to
the Representative that (a) the Class A Certificates have been rated in
the highest rating category by each of Standard & Poor's, Xxxxx'x and
Fitch and (b) the Class B Certificates have been rated at least "[__]" by
Standard & Poor's, "[__]" by Xxxxx'x and "[__]" by Fitch.
(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 Pooling and Servicing Agreement are true and correct as
of the dates specified in the Pooling and Servicing 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.
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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 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
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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 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. Default of Underwriters. If any Underwriter defaults in its
obligations to purchase Certificates hereunder and the aggregate principal
amount of the Certificates that such defaulting Underwriter agreed but failed
to purchase does not exceed 10% of the total principal amount of such
Certificates, the Representative may make arrangements satisfactory to the
Bank for the purchase of such Certificates by other persons, including the
non-defaulting Underwriters, but if no such arrangements are made by the
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Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the
Certificates that such defaulting Underwriter agreed but failed to purchase.
If any Underwriter so defaults and the aggregate principal amount of the
Certificates with respect to which such default or defaults occur exceeds 10%
of the total principal amount of such Certificates and arrangements
satisfactory to the Representative and the Bank for the purchase of such
Certificates by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Bank, except as provided in Section 11.
Nothing herein will relieve a defaulting Underwriter from liability for its
default.
11. 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.
12. 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 x/x Xxxxx Xxxxxxxxx Automotive
Finance Corporation, 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000,
Attention: Financial Controller.
13. 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 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.
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14. 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.
15. 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 certificates 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.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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
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:
SCHEDULE I
Aggregate Aggregate
Principal Principal
Amount of Amount of
Class A Class B
Underwriters Certificates Certificates
------------ ------------ ------------
Total $ $
