EXECUTION COPY
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CHASE MANHATTAN AUTO OWNER TRUST 1998-C
ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Seller and Servicer
NOTE UNDERWRITING AGREEMENT
June 11, 1998
Chase Securities Inc.
As Representative of the
Several Underwriters,
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
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 1998-C (the "Trust") to sell $258,000,000.00
aggregate principal amount of Class A-1 5.588% Asset Backed Notes (the "Class
A-1 Notes"), $195,000,000.00 aggregate principal amount of Class A-2 5.747%
Asset Backed Notes (the "Class A-2 Notes"), $325,000,000.00 aggregate
principal amount of Class A-3 5.800% Asset Backed Notes (the "Class A-3
Notes") and $283,900,000.00 aggregate principal amount of Class A-4 5.850%
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 and actuarial 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 close of business on May 31, 1998 (the "Cut-off Date")
was equal to $1,094,789,211.45. The Notes will be issued pursuant to the
Indenture to be dated as of June 1, 1998 (as amended and supplemented from
time to time, the "Indenture"), between the Trust and Norwest Bank Minnesota,
National Association, as indenture trustee (the "Indenture Trustee").
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Simultaneously with the issuance and sale of the Notes as
contemplated herein, the Trust will issue $32,889,211.45 aggregate principal
amount of 6.000% Asset Backed Certificates (the "Certificates") pursuant to
the Amended and Restated Trust Agreement to be dated as of June 1, 1998 (as
amended and supplemented from time to time, the "Trust Agreement"), between
the Bank and Wilmington Trust Company, 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") between the Bank and Chase Securities Inc. 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 June 1, 1998 (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 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. 333-36939) 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 and the Term
Sheet dated June 9, 1998 relating to the Securities (the "Term Sheet")
disseminated by the Underwriters, 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 filed the Term Sheet on Form 8-K with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), within two business days of its dissemination by the Underwriters. 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
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the Trust Agreement and delivered upon the order of the Bank to Chase
Securities Inc. 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,
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 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.
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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 Underwriter, and each Underwriter agrees, severally and not jointly,
to purchase from the Bank, (a) at a purchase price of 99.900000% 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 99.837500% 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 99.757500% 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 99.625000% 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 June 17, 1998 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 Xxxxxxx Xxxxxxx & Xxxxxxxx in New York, New York at 10:00 a.m., New
York City time, on June 17, 1998 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
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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 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 Cedel Bank, 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' and reports furnished to the Indenture Trustee or the Owner
Trustee pursuant to the Sale and Servicing Agreement, as soon as practicable
after such statements and reports are furnished to the Indenture Trustee or
the Owner Trustee.
(f) So long as any of the 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 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
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and any other information concerning the Bank filed with any governmental or
regulatory authority which is otherwise publicly available, as the
Representative may reasonably request.
(g) On or before the Closing Date, the Bank shall cause its
computer records relating to the Receivables to be marked to show the Trust's
absolute ownership of the Receivables, and from and after the Closing Date
neither the Bank nor the Servicer shall take any action inconsistent with the
Trust's ownership of such Receivables and the security interest of the
Indenture Trustee therein, other than as permitted by the Sale and Servicing
Agreement.
(h) To the extent, if any, that the rating provided with
respect to the Notes by Standard & Poor's, Xxxxx'x 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 Price Waterhouse LLP, (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. Representation of the Underwriters. Each Underwriter
hereby represents and warrants that the Term Sheet constitutes the only
"Series Term Sheet" (as such term is defined in the no-action letter addressed
to Greenwood Trust Company, Discover Card Master Trust I dated April 5, 1996)
and the only "Computational Materials," "ABS Term Sheets," "Structural Term
Sheets" or "Collateral Term Sheet" (as such terms are defined in the no-action
letters addressed to Xxxxxx, Xxxxxxx Acceptance Corporation I, et al. dated
May 20, 1994 and to the Public Securities Association dated February 17, 1995)
disseminated by it in connection with offering of the Notes contemplated
hereunder.
8. 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:
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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 each of Price Waterhouse LLP and Xxxxxx Xxxxxxxx
LLP 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, 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 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 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 Xxxxxxx Xxxxxxx &
Xxxxxxxx, special counsel to the Bank, Xxxxxxxx, Xxxxxx & Finger,
special counsel to the Trust, and such other counsel otherwise
reasonably acceptable to the Representative, with respect to such
matters as are customary for the type of transaction contemplated by
this Agreement.
(e) The Representative shall have received an opinion or
opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Bank,
dated the Closing Date and 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 Xxxxxxxx,
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Xxxxxx & Finger, 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 Xxxxxx, Xxxx
& Xxxxxxxx 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
Xxxxxxx Xxxxxxx & Xxxxxxxx, special tax counsel to the Bank, dated
the Closing Date and reasonably satisfactory in form and to the
effect (a) that under current law the Notes will be characterized as
debt, and the Trust will not be characterized as an association (or a
publicly traded partnership) taxable as a corporation for United
States federal income tax purposes and (b) that, subject to the
qualifications set forth therein, the discussion set forth in the
Prospectus Supplement under the caption "Certain Federal Income Tax
Consequences" is an accurate summary of the United States federal
income tax matters described therein.
(h) The Representative shall have received an opinion of
Xxxxxx & Whitney LLP, counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to the
Representative, with respect to such matters as are customary for the
transactions contemplated by this Agreement.
In rendering such opinions, counsel to the Indenture Trustee
may rely on the opinion of the office of the general counsel to the
Indenture Trustee.
(i) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, 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 "A-1+" by
Standard & Poor's, P-1 by Xxxxx'x and "F1+" by Fitch. The Class A-2
Notes, Class A-3 Notes and Class A-4 Notes shall have been rated
"AAA" by Standard & Poor's, Aaa by Xxxxx'x and "AAA" by Fitch. The
Certificates shall have been rated "A+" by Standard & Poor's, A2 by
Xxxxx'x and "A+" 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
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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 in which
they were made, not misleading.
(l) On the Closing Date, $32,889,211.45 aggregate amount of
Certificates shall have been issued and sold pursuant to the
Certificate Underwriting Agreement.
The Bank will furnish the Representative, or cause the
Representative to be furnished, with such number of conformed copies of such
opinions, certificates, letters and documents as the Representative reasonably
requests.
9. 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
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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 9, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
any preliminary prospectus supplement, the Registration Statement or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Bank by such Underwriter
through the Representative expressly for use in such preliminary prospectus
supplement, the Registration Statement or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability which it may have hereunder or otherwise, other than on account of
this indemnity agreement. In case any such action shall be brought against an
indemnified party and it shall have notified the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party with respect to such action), and it being understood that
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys,
and, after notice from the indemnifying party to the indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to the indemnified party under subsections (a) or (b) of this Section 9
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 9 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 9 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.
10. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 9 is for any reason held to be unavailable other than in accordance
with its terms, the Bank and the Underwriters shall
12
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.
11. 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 12. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
12. 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 Section 9 and 10 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 8(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.
13
13. 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 Chase
Securities Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset Backed Finance Division, or, if sent to the Bank, will be
mailed, delivered, or telegraphed and confirmed to Chase Manhattan Bank USA,
National Association, c/o Chase Manhattan Automotive Finance Corporation, 000
Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, Attention: Financial Controller.
14. 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 9 and 10 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 Notes from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
15. 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.
16. 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.
17. 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 /s/ Xxxxxxxx Xxxxxx
-----------------------------
Title: Vice President
The foregoing Note
Underwriting Agreement
is hereby confirmed and
accepted as of the date
first written above:
CHASE SECURITIES INC.
on behalf of itself and
as Representative
of the Several Underwriters,
named in Schedule I
By /s/ Xxxx Xxxxxxx
------------------------
Title: Vice President
SCHEDULE I
Principal Amount of Principal Amount of Principal Amount of Principal Amount of
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes
----------- --------------- --------------- --------------- ---------------
Chase Securities Inc................... $64,500,000.00 $48,750,000.00 $81,250,000.00 $71,650,000.00
Credit Suisse First Boston Corporation 64,500,000.00 48,750,000.00 81,250,000.00 70,750,000.00
Xxxxxxx, Xxxxx & Co.................... 64,500,000.00 48,750,000.00 81,250,000.00 70,750,000.00
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated...................... 64,500,000.00 48,750,000.00 81,250,000.00 70,750,000.00
-------- -------- -------- --------
Total $258,000,000.00 $195,000,000.00 $325,000,000.00 $283,900,000.00
