Exhibit 1.1(B)
Form of Note
Underwriting Agreement
(Owner Trust)
CHASE MANHATTAN AUTO OWNER TRUST 200_-_
ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Seller and Servicer
NOTE 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 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").
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 Notes
will be issued pursuant to the Indenture to be dated as of __________ __, 200_
(as amended and supplemented from time to time, the "Indenture"), between the
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Trust and _______________, _____________, as indenture trustee (the "Indenture
Trustee").
Simultaneously with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $____________ aggregate principal amount of ____%
Asset Backed Certificates (the "Certificates") 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"), each representing a
fractional undivided ownership interest in the Trust, which will be sold
pursuant to an underwriting agreement dated the date hereof (the "Certificate
Underwriting Agreement" and, together with this Agreement, the "Underwriting
Agreements") among the Bank and the underwriters named therein (the
"Certificate 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 Notes
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."
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(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 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 Underwriters pursuant to this 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 Certificate Underwriters
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pursuant to the Certificate Underwriting 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 Certificate 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 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 Certificate Underwriting Agreement and the Basic Documents
to which the Bank is a party, have 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 Certificate Underwriting Agreement have
been duly executed and delivered by the Bank.
3. Purchase, Sale, Payment and Delivery of the Notes. 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
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Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Bank, (a) at a purchase price of _______% of the principal
amount thereof, the principal amount of the Class A-1 Notes set forth opposite
the name of such Underwriter in Schedule I hereto, (b) at a purchase price of
_______% of the principal amount thereof, the principal amount of the Class
A-2 Notes set forth opposite the name of such Underwriter in Schedule I
hereto, (c) at a purchase price of _______% of the principal amount thereof,
the principal amount of the Class A-3 Notes set forth opposite the name of
such Underwriter in Schedule I hereto and (d) at a purchase price of _______%
of the principal amount thereof, the principal amount of the Class A-4 Notes
set forth opposite the name of such Underwriter in Schedule I hereto plus, in
each case, accrued interest at the applicable Interest Rate from __________
__, 200_ to but excluding the Closing Date.
The Bank will deliver the Notes 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
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 Notes of each class
to be so delivered will be initially represented by one or more definitive
Notes registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC") and will be made available for inspection by the
Representative at the office where delivery and payment for such Notes 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 Notes 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
Notes is required to be delivered to purchasers of the Notes by the
Underwriters and dealers participating in the initial offering and sale
of the Notes on the Closing Date under the Act [(without regard to any
market making prospectus required to be delivered by any Underwriter
under 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 Notes or of any proceedings or examinations that may lead to such
an order or communication, whether by or of the Commission or any
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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 Notes, 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 Notes for sale and the determination of their
eligibility for investment under the laws of such jurisdictions, or as
necessary to qualify for the Euroclear System or Clearstream Banking,
societe anonyme, as the Representative designates and will cooperate in
continuing such qualifications in effect so long as required for the
distribution of the Notes; 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 Notes, the Bank, as Servicer, will furnish to the
Representative copies of each certificate and the annual statements of
compliance delivered to the Noteholders and the independent certified
public accountants' 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 Notes 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 Noteholders,
(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.
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(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 Notes by 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 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 Notes 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.
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(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, Chase or The Chase Manhattan Corporation
which, in the reasonable judgment of the Representative, materially
impairs the investment quality of the Notes or makes it impractical to
market the Notes; (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, Chase or ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ & 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 Notes.
(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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
special counsel to the Bank, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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 with respect to a grant
of a security interest in the Receivables to the Indenture Trustee, and
an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 ▇▇▇▇▇ & 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 Notes, 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 ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special tax counsel to the Bank, dated the Closing
Date and reasonably satisfactory in form and to the effect (a) that under
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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 "Material
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 United States federal income tax matters described therein.
(h) Reserved.
(i) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., 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.
(j) The Class A-1 Notes shall have been rated "___" by Standard &
Poor's, "___" by ▇▇▇▇▇'▇ and "___" by Fitch. The Class A-2 Notes, Class
A-3 Notes and Class A-4 Notes shall have been rated "___" by Standard &
Poor's, "___" by ▇▇▇▇▇'▇ and "___" by Fitch. The Certificates shall have
been rated "___" by Standard & Poor's, "___" by ▇▇▇▇▇'▇ and "___" by
Fitch.
(k) 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.
(l) On the Closing Date, $__________ aggregate amount of
Certificates shall have been issued and sold pursuant to the Certificate
Underwriting Agreement.
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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 Notes 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 Notes 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
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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.
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10. Default of Underwriters. If any Underwriter defaults in its
obligations to purchase Notes hereunder and the aggregate principal amount of
the Notes that such defaulting Underwriter agreed but failed to purchase does
not exceed 10% of the total principal amount of Notes, the Representative may
make arrangements satisfactory to the Bank for the purchase of such Notes by
other persons, including the non-defaulting Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Notes that such defaulting Underwriter agreed but
failed to purchase. If any Underwriter so defaults and the aggregate principal
amount of the Notes with respect to which such default or defaults occur
exceeds 10% of the total principal amount of the Notes and arrangements
satisfactory to the Representative and the Bank for the purchase of such Notes
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 Notes. If for any reason the purchase of the Notes 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 Notes 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 Notes.
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 Chase Manhattan Bank USA, National
Association, c/o Chase Manhattan Automotive Finance Corporation, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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
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Notes from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
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 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.
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 several
Underwriters in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By_______________________
Name:
Title:
The foregoing Note
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
Principal Amount of Principal Amount of Principal Amount of Principal Amount
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes of Class A-4 Notes
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