Form of Certificate Underwriting
Agreement (Grantor Trust)
CHASE MANHATTAN BANK USA, N.A.
Seller and Servicer
Chase Manhattan Auto Grantor Trust 199_-_
$____________ __% Automobile Loan Pass-Through Certificates, Class A
$____________ __% Automobile Loan Pass-Through Certificates, Class B
UNDERWRITING AGREEMENT
_________ __, 199_
[--------------------]
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 199_-_ (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 __________ __, 199_ (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 due or to become due thereunder on or
after the Cutoff Date (as hereinafter defined), such Receivables to be sold 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 _________ __, 199_ (the
"Cutoff Date") was $________________. In addition, the Seller will establish a
reserve account (the "Reserve Account") with an 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 Chase Securities Inc. 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 under the Act, 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
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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,
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, the Bank makes no
representation and warranty as 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
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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, or (ii) conflict with any of the provisions of any
law, governmental rule, regulation, judgment, decree or order
binding on the Bank or its properties, or (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.
(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
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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 ____________ __, 199_
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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ in New York, New York at 10 a.m., New
York City time, on _________ __, 199_ 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 so to be
delivered shall be initially represented by a definitive Class A Certificate in
the initial amount of $_____________ registered in the name of Cede & Co., as
nominee for The Depository Trust Company, a definitive Class B Certificate in
the initial amount of $_____________ registered in the name of Cede & Co., as
nominee for The Depository Trust Company and a definitive Class A Certificate in
the amount of $______ registered in the name provided by the Representative. 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 (a "prospectus delivery
period") that a prospectus relating to the Certificates is
required under the Act 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, 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, or 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 (without regard to any market making prospectus
required by any Underwriter pursuant to the Act), any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary 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
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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 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 continue 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 are
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
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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, ▇▇▇▇▇'▇
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 printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the Trustee's acceptance fee and the fees
and disbursements of the counsel to the Trustee, (iii) the fees and
disbursements of the accountants, (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:
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(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 of The Chase Manhattan Corporation 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,
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Bank
and/or such other counsel otherwise reasonably acceptable to
the Representative, when taken together, with respect to such
matters as are customary
9
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 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, 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
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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
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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;
(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, ▇▇▇▇▇'▇ and Fitch and (b) the
Class B Certificates have been rated at least "[__]" by
Standard & Poor's, "[__]" by ▇▇▇▇▇'▇ and "[__]" by Fitch.
(j) The Representative shall have received a
certificate, dated the Closing Date, of a Vice President or
more senior officer of the Bank in which such officer, to the
best of his or her knowledge after
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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) that 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) that no stop order suspending
the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are threatened by the Commission, (v) that,
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 in which they were made, not misleading.
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 (other than
any market making prospectus), the Prospectus, or any
amendment or supplement thereto (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
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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 the 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
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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
14
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 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 the Underwriters 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
15
Representative at [__________________________________________],
Attention: [___________________________], or, if sent to the
Bank, will be mailed, delivered or telegraphed and confirmed to
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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 Certificates
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. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
16
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:
17
SCHEDULE I
----------
Aggregate Aggregate
Principal Principal
Amount of Amount of
Class A Class B
Underwriters Certificates Certificates
------------ ------------ ------------
Total $ $
18
