CHASE MANHATTAN MARINE OWNER TRUST 1997-A
CLASS B ASSET BACKED NOTES
CLASS C ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
and
THE CHASE MANHATTAN BANK,
Sellers
THE CIT GROUP/SALES FINANCING, INC.,
Servicer
CLASS B AND CLASS C UNDERWRITING AGREEMENT
------------------------------------------
October __, 1997
Chase Securities Inc.0
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
1. Introductory. Chase Manhattan Bank USA, National
Association ("Chase USA"), a national banking association, and The Chase
Manhattan Bank ("Chase"), a New York banking corporation (each, a "Bank", and
together the "Banks"), propose to form Chase Manhattan Marine Owner Trust 1997-A
(the "Trust") to sell $10,650,000 aggregate principal amount of Class B ____%
Asset Backed Notes (the "Class B Notes") and $17,312,029.25 aggregate principal
amount of Class C ___% Asset Backed Notes (the "Class C Notes," and together
with Class B Notes, the "Junior Notes").
The assets of the Trust will include, among other things, a
pool of retail installment sales contracts and purchase money notes and other
notes (the "Receivables") secured by new and used boats (the "Financed Boats")
and certain monies received or due thereunder on and after the Cutoff Date (as
hereinafter
--------
1 Assumes Chase Securities Inc. is only Underwriter of Junior
Notes.
defined), such Receivables to be transferred to the Trust and serviced by The
CIT Group/Sales Financing, Inc. ("CITSF," and in its capacity as Servicer, the
"Servicer"), or by a successor Servicer. The Pool Balance of the Receivables as
of the close of business on October 1, 1997 (the "Cutoff Date") was equal to
$266,262,029.25 (the "Cutoff Date Pool Balance"). The Junior Notes will be
issued pursuant to the Indenture to be dated as of October 1, 1997 (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").
Simultaneously with the issuance and sale of the Junior
Notes as contemplated herein, the Trust will issue (a) $41,800,000 aggregate
principal amount of Class A-1 ____% Asset Backed Notes (the "Class A-1 Notes"),
$55,600,000 aggregate principal amount of Class A-2 ____% Asset Backed Notes
(the "Class A-2 Notes"), $50,600,000 aggregate principal amount of Class A-3
____% Asset Backed Notes (the "Class A-3 Notes"), $37,300,000 aggregate
principal amount of Class A-4 ____% Asset Backed Notes (the "Class A-4 Notes"),
$29,300,000 aggregate principal amount of Class A-5 ____% Asset Backed Notes
(the "Class A-5 Notes") and $23,700,000 aggregate principal amount of Class A-6
___% Asset Backed Notes (the "Class A-6 Notes," and together with the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the
Class A-5 Notes, the "Class A Notes"), pursuant to the Indenture which will be
sold pursuant to an underwriting agreement dated the date hereof (the "Class A
Underwriting Agreement"; together with this Agreement, the "Underwriting
Agreements") among the Banks and the underwriters named therein (the "Class A
Underwriters") and (b) Asset Backed Certificates (the "Certificates") pursuant
to an Amended and Restated Trust Agreement to be dated as of October 1, 1997
(as amended and supplemented from time to time, the "Trust Agreement"), among
the Banks and Wilmington Trust Company, as owner trustee (the "Owner Trustee"),
each representing a fractional undivided interest in the Trust. The
Certificates will not be sold pursuant to the Underwriting Agreements. The
Class A Notes and the Junior Notes 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 October 1, 1997 (as amended and supplemented from time to time,
the "Sale and Servicing Agreement"), among the Trust, the Banks, as Sellers,
Servicer.
This is to confirm the agreement concerning the purchase of
the Junior Notes from the Banks by Chase Securities Inc. (the "Class B and Class
C Underwriter").
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2. Representations and Warranties of the Banks. Each Bank
represents and warrants to, and agrees with, the Underwriter, that:
(a) A registration statement on Form S-3 (No. 333-
32737/-01/-02) including a form of prospectus, relating to the Securities 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"). The Banks may have filed one or more amendments thereto,
including the related preliminary prospectus, each of which has previously been
furnished to you. The Banks have included in such registration statement, as
amended on the date such registration statement became effective, all
information (other than information permitted to be omitted from a registration
statement when it becomes effective pursuant to Rule 430A ("Rule 430A
Information") required by the Act and the Rules and Regulations to be included
in the final prospectus with respect to the Securities and the offering thereof.
Such registration statement, as amended on the date that such registration
statement or the most recent post-effective amendment thereto, if any, became or
becomes effective under the Act, including the exhibits thereto and the 430
Information, 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 such 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, have been satisfied with respect to the Registration Statement;
(b) The Banks propose to file with the Commission pursuant to
Rules 430A and 424(b)(1) or 424(b)(4) under the Rules and Regulations a final
prospectus relating to the sale of the Securities. The prospectus in the form
filed with the Commission pursuant to Rules 430A and 424(b)(1) or 424(b)(4)
under the Rules and Regulations is hereinafter referred to as the "Prospectus."
As filed, the Prospectus shall include all Rule 430A Information, together with
all other such required information, with respect to the Securities and the
offering thereof and, except to the extent that the Underwriter shall have
agreed to a modification, the Prospectus shall be in all substantive respects in
the form furnished to the Underwriter prior to the execution of this Agreement
or, to the extent not completed at such time, shall contain only such material
changes as the Banks have advised the Class B and Class C Underwriter, prior to
such time, will be included or made therein. "Preliminary Prospectus" means each
prospectus included in the Registration Statement, or amendments thereof, before
it became effective under the Act, any prospectus filed with the Commission by
the Banks pursuant to Rule 424(a)
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and the prospectus included in the Registration Statement on the
date the Registration Statement became effective;
(c) The Registration Statement, at the time it became
effective, did, and the Prospectus, at the time the Prospectus is first filed in
accordance with Rule 424(b) and on the Closing Date (as defined herein), will,
comply in all material respects with the applicable requirements of the Act and
the Trust Indenture Act of 1939 and the Rules and Regulations. At the time the
Registration Statement became effective, it did not include any untrue statement
of a material fact or, did not omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and,
on the date of the filing of the Prospectus pursuant to Rules 430A and 424(b)
and on the Closing Date, the Prospectus (together with any supplement thereto)
will not, 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 such Bank makes no representation or 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 either
Bank by or on behalf of the Underwriter through the Underwriter specifically for
use in connection with the preparation of the Registration Statement or the
Prospectus;
(d) In the case of Chase USA, such Bank is a national banking
association organized under the laws of the United States, and in the case of
Chase, such Bank is a New York banking corporation, in each case, 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, and sell the Receivables being transferred by such
Bank to the Trust;
(e) When the Class A 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 Banks to
the Class A Underwriters pursuant to the Class A Underwriting Agreement and the
Sale and Servicing Agreement, the Class A 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 either Bank or the Trust or in the event of any moratorium or similar
occurrence affecting either Bank or the Trust and to general principles of
equity;
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(f) When the Junior 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 Banks to
the Class B and Class C Underwriter pursuant to the Class B and Class C
Underwriting Agreement and the Sale and Servicing Agreement, the Junior 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 either Bank or the Trust or in the event of
any moratorium or similar occurrence affecting either Bank or the Trust and to
general principles of equity;
(g) The execution, delivery and performance by such Bank of
this Agreement, the Class A Underwriting Agreement, and the Basic Documents to
which such Bank is a party, and the consummation by such Bank of the
transactions provided for herein and therein have been, or will have been, duly
authorized by such Bank by all necessary action on the part of such Bank; and
neither the execution and delivery by such Bank of such instruments, nor the
performance by such Bank of the transactions herein or therein contemplated, nor
the compliance by such 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 charter or by-laws of such Bank, or (ii) conflict with any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on such Bank or the properties of such Bank, or (iii) conflict with any
of the material provisions of any material indenture, mortgage, contract or
other instrument to which such Bank is a party or by which such Bank 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 such Bank to consummate such transactions;
(h) When executed and delivered by the parties thereto, such
of the Sale and Servicing Agreement and the Trust Agreement will constitute a
legal, valid and binding obligation of such Bank, enforceable against such 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
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reorganization or other similar occurrence with respect to such Bank or in the
event of any moratorium or similar occurrence affecting such 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
Class A Underwriting Agreement and the Basic Documents to which such Bank is a
party has been or will be taken or obtained on or prior to the Closing Date;
(j) As of the Closing Date, the representations and
warranties of such Bank, in the Trust Agreement will be true and
correct;
(k) This Agreement and the Class A Underwriting
Agreement have been duly executed and delivered by such Bank;
3. Purchase, Sale, Payment and Delivery of the Junior Notes.
On the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, Chase USA agree to
sell to the Underwriter, and the Underwriter agrees, to purchase from Chase USA,
(a) at a purchase price of ________% of the principal amount thereof,
$10,650,000 principal amount of the Class B Notes and (b) at a purchase price
of ____% of the principal amount thereof, $17,312,029.25 principal amount of
the Class C Notes.
On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
Chase agrees to sell to the Underwriter, and the Underwriter agrees, to purchase
from Chase, at (a) a purchase price of ________% of the principal amount
thereof, $10,650,000 principal amount of the Class B Notes and (b) a purchase
price of ____% of the principal amount thereof, $17,312,029.25 principal amount
of the Class C Notes.
Each Bank will deliver the Junior Notes being sold by it
hereunder to the Underwriter against payment of the purchase price in
immediately available funds drawn to the order of Chase USA and Chase, in each
case with respect to the Junior Notes sold by it, at the offices of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP in New York, New York at 10:00 a.m., New York City
time, on October _______, 1997 or at such other time not later than seven full
business days thereafter as the Class B and Class C Underwriter and the Banks
determine, such time being herein referred to as the "Closing Date." The Junior
Notes of each class to be so delivered will be initially represented by one or
more definitive Junior Notes registered in the name of Cede & Co., the nominee
of The Depository Trust Company ("DTC"), except for a Class C Note registered in
the name of Chase Securities Inc. in an amount of
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$29.25, and will be made available for inspection by the Class B and Class C
Underwriter at the office where delivery and payment for such Junior 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 Underwriter. It is understood that the
Class B and Class C Underwriter proposes to offer the Junior Notes for sale to
the public (which may include selected brokers and dealers) as set forth in the
Prospectus.
5. Covenants of the Banks. Each Bank covenants and
agrees with the Underwriter that:
(a) Such Bank will file the Prospectus with the Commission
pursuant to Rule 424(b)(1) or 424(b)(4) of the Rules and Regulations within the
time prescribed therein and will provide evidence satisfactory to the Class B
and Class C Underwriter of such timely filing. During any period that a
prospectus relating to the Junior Notes is required under the Act to be
delivered to purchasers of the Junior Notes by the underwriters and dealers
participating in the initial offering and sale of the Junior Notes on the
Closing Date under the Act (without regard to any market making prospectus
required to be delivered by the Junior Notes Underwriter pursuant to the Act) (a
"prospectus delivery period"), such 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 Class B and Class C Underwriter, and, if the Underwriter shall have
reasonably objected thereto promptly after receipt thereof; such Bank will
promptly advise the Underwriter 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 such Bank is
advised thereof, and such Bank 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
7
comply with the Act or the Rules and Regulations, such Bank promptly will
prepare and file with the Commission (subject to the Class B and Class C
Underwriter'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) Such Bank will furnish to the Class B and Class C
Underwriter copies of the Registration Statement, as originally filed with the
Commission, and each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith and each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; in each case as soon as
available and in such quantities as the Class B and Class C Underwriter may
reasonably request.
(d) Such Bank will cooperate with the Class B and Class C
Underwriter in arranging for the qualification of the Junior Notes for sale and
the determination of their eligibility for investment under the laws of such
jurisdictions as the Class B and Class C Underwriter designates and will
cooperate in continuing such qualifications in effect so long as required for
the distribution of the Junior Notes; provided, however, that neither any such
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) [Reserved]
(f) So long as any of the Junior Notes is outstanding, such
Bank will furnish to the Class B and Class C Underwriter as soon as practicable,
(A) all documents distributed, or caused to be distributed, by such Bank to the
holder of Junior Notes, (B) all documents filed, or caused to be filed, by such
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 such Bank concerning the Trust and any other information concerning such Bank
filed with any governmental or regulatory authority which is otherwise publicly
available, as the Class B and Class C Underwriter may reasonably request.
(g) On or before the Closing Date, such Bank shall cause its
computer records relating to the Receivables to be marked to show the Trust's
absolute ownership of such Receivables transferred by such Bank to the Trust,
and from and after the Closing Date neither such 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
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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 Junior Notes of any other class by Xxxxx'x, Standard & Poor's
and/or Duff & Xxxxxx is conditional upon the furnishing of documents or the
taking of any other actions by such Bank agreed upon on or prior to the
Closing Date, such 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 Class B and Class C Underwriter, neither
such Bank nor any trust originated, directly or indirectly, by such Bank will
offer to sell or sell notes (other than the Class A Notes) collateralized by, or
certificates (other than the Certificates) collateralized by receivables
generated pursuant to marine installment sale contracts or purchase money loans.
6. Payment of Expenses. The Banks will pay all expenses
incident to the performance of their respective 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 and Xxxxxx Xxxxxxxx, (iv) the
fees of the Rating Agencies and (v) blue sky expenses; provided, however, that
the Class B and Class C Underwriter may reimburse the Banks for certain expenses
incurred by the Banks as agreed to by the Class B and Class C Underwriter and
the Banks.
7. Conditions to the Obligations of the Underwriter. The
obligation of the Underwriter to purchase and pay for the Junior Notes will be
subject to the accuracy of the representations and warranties on the part of the
Banks herein on the date hereof and as of the Closing Date, to the accuracy of
the statements of officers of the Banks made pursuant to the provisions hereof,
to the performance by the Banks of their respective obligations hereunder and to
the following additional conditions precedent:
(a) On or prior to the date hereof the Class B and
Class C Underwriter shall have received a letter (a
"Procedures Letter"), dated the date of this Agreement of each
of Price Waterhouse LLP and Xxxxxx Xxxxxxxx verifying the
accuracy of such financial and statistical data contained in
the Prospectus as the Class B and Class C Underwriter 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 Class B and Class
C Underwriter shall have received a letter dated the
9
Closing Date confirming each Procedures Letter and
providing additional comfort on such new data;
(b) The Prospectus 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 any of
the Banks, The Chase Manhattan Corporation, CITSF or The CIT
Group, Inc. which, in the reasonable judgment of the
Underwriter, materially impairs the investment quality of the
Junior Notes or makes it impractical to market the Junior
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 any of the Banks 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 Class B and
Class C Underwriter, 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
Junior Notes;
(d) The Class B and Class C Underwriter shall have
received opinions, dated the Closing Date and reasonably
satisfactory, when taken together, in form and substance to
the Class B and Class C Underwriter, of Xxxxxxx Xxxxxxx &
Xxxxxxxx, special counsel to the Banks, Xxxxxxxx, Xxxxxx &
Finger, special counsel to the Trust, and such other counsel
otherwise reasonably acceptable to the Class B and Class C
Underwriter, with respect to such matters as are customary for
the type of transaction contemplated by this Agreement;
(e) The Class B and Class C Underwriter shall have
received an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx,
special counsel to the Banks, dated the Closing Date and
satisfactory in form and substance to
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the Class B and Class C Underwriter, with respect to certain
matters relating to the transfers from each Bank to the Trust
of its Receivables, with respect to the perfection of the
Trust's interest in the Receivables transferred by Chase and
with respect to the grant of a security interest in the
Receivables to the Indenture Trustee, and an opinion of
Xxxxxxxx, Xxxxxx & Finger, Special Counsel to the Trust, with
respect to the perfection of the Trust's interest in the
Receivables transferred by Chase USA and the Indenture
Trustee's interests in the Receivables;
(f) The Class B and Class C Underwriter shall have
received from Xxxxxx X. Xxxxx, Senior Vice President,
Secretary and General Counsel of the Servicer, such opinion or
opinions, dated the Closing Date and satisfactory in form and
substance to the Class B and Class C Underwriter, with respect
to corporate matters;
(g) The Class B and Class C Underwriter shall have
received from Xxxxxx X. Xxxxxx, counsel to the Sellers, such
opinion or opinions, dated the Closing Date and satisfactory
in form and substance to the Class B and Class C Underwriter,
with respect to certain matters relating to the transfer to
the Trust of Preferred Ship Mortgages in accordance with the
Ship Mortgage Statutes and other related matters as the Class
B and Class C Underwriter may require;
(h) The Class B and Class C Underwriter shall have
received from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to
the Class B and Class C Underwriter, such opinion or opinions,
dated the Closing Date and satisfactory in form and substance
to the Class B and Class C Underwriter, with respect to the
validity of the Junior Notes, the Registration Statement, the
Prospectus and other related matters as the Class B and Class
C Underwriter may require, and the Banks shall have furnished
to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters;
(i) The Class B and Class C Underwriter shall have
received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, special
U.S. tax counsel to the Banks, dated the Closing Date and
reasonably satisfactory in form and substance to the Class B
and Class C Underwriter, with respect to such matters as are
customary for the type of transaction contemplated by this
Agreement;
(j) The Class B and Class C Underwriter shall have
received an opinion of Xxxxx & Xxxxxxx, P.C., special Oklahoma
tax counsel to the Banks, dated the
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Closing Date and satisfactory in form and substance to the
Class B and Class C Underwriter, with respect to such matters
as are customary for the type of transaction covered by this
Agreement;
(k) The Class B and Class C Underwriter shall have
received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to the
Indenture Trustee, dated the Closing Date and satisfactory in
form and substance to the Class B and Class C Underwriter 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.
(l) The Class B and Class C Underwriter shall have
received an opinion of counsel to the Owner Trustee, and such
other counsel reasonably satisfactory to the Class B and Class
C Underwriter and its counsel, dated the Closing Date and
satisfactory in form and substance to the Class B and Class C
Underwriter, with respect to such matters as are customary for
the type of transaction contemplated by this Agreement;
(m) The Class B Notes have been rated at least "AA"
by Standard & Poor's, "A1" by Xxxxx'x and "AA" by Xxxx &
Xxxxxx and the Class C Notes have been rated at least "A-" by
Standard & Poor's, "Baa2" by Xxxxx'x and "A-" by Xxxx &
Xxxxxx. Each class of Senior Notes shall have been rated "AAA"
by Standard & Poor's, Aaa by Xxxxx'x and "AAA" by Xxxx &
Xxxxxx;
(n) The Class B and Class C Underwriter shall have
received a certificate, dated the Closing Date, of an
attorney-in-fact, a Vice President or more senior officer of
each 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 such Bank in this
Agreement are true and correct in all material respects on and
as of the Closing Date, (ii) that such 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 such Bank,
as Seller, 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) 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 and (v) the Prospectus
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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;
(o) On the Closing Date, all of the Class A Notes
shall have been issued and sold pursuant to the Class A
Underwriting Agreement; and
(p) CITSF, the Banks and the Class B and Class C
Underwriter shall have entered into an Indemnification
Agreement (the "Indemnification Agreement") satisfactory in
form and substance to the parties thereto.
Each Bank will furnish the Class B and Class C Underwriter, or
cause the Class B and Class C Underwriter to be furnished, with such number of
conformed copies of such opinions, certificates, letters and documents as the
Underwriter reasonably requests.
8. Indemnification. (a) The Banks jointly and severally will
indemnify and hold harmless the Class B and Class C Underwriter against any
losses, claims, damages or liabilities, to which the Class B and Class C
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 the Preliminary Prospectus, 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 the Class B and Class C Underwriter for any legal or other
expenses reasonably incurred by the Underwriter in connection with investigating
or defending any such action or claim; provided, however, that (i) the Banks
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 (A) in Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to either Bank by the Class B and Class C Underwriter expressly for
use therein or (B) in the CITSF Information (as defined in the Indemnification
Agreement) contained in the Preliminary Prospectus, the Registration Statement
or the Prospectus and (ii) such indemnity with respect to the Preliminary
Prospectus shall not inure to the benefit of the Class B and Class C Underwriter
(or any person controlling any the Class B and Class C Underwriter) from whom
the person asserting any such loss, claim, damage or liability purchased the
13
Junior 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 Junior 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 the Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as supplemented).
(b) The Class B and Class C Underwriter agrees to indemnify
and hold harmless each Bank, the directors, the officers or agents of each Bank
who signed the Registration Statement, and each person, if any, who controls
each 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 the
Preliminary Prospectus, the Registration Statement or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to either Bank by the Class B and Class C Underwriter
expressly for use in the Preliminary Prospectus, the Registration Statement or
the Prospectus (or any amendment or supplement).
(c) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have hereunder or otherwise, other than on account of this
indemnity agreement. In case any such action shall be brought against an
indemnified party and it shall have notified the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party with respect to such action), and it being understood that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys, and,
after notice from the indemnifying party to the indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to the indemnified party under subsections (a) or (b) of this Section 8
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by the indemnified party, in connection with the defense
thereof other than reasonable costs of investigation.
(d) The obligations of each Bank under this Section 8 shall
be in addition to any liability which such Bank may
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otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Class B and Class C Underwriter within the
meaning of the Act; and the Class B and Class C Underwriter's obligations under
this Section 8 shall be in addition to any liability which the Class B and Class
C Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of each Bank and to each person, if
any, who controls each 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 Banks and the Underwriter shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Banks or the Class B and Class C
Underwriter, as incurred, in such proportions so that the Class B and Class C
Underwriter is 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 Banks are 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 the Class B and Class C
Underwriter within the meaning of Section 15 of the Act shall have the same
rights to contribution as the Class B and Class C Underwriter, and each director
of each Bank, each officer or agent of each Bank who signed the Registration
Statement, and each person, if any, who controls each Bank within the meaning of
Section 15 of the Act shall have the same rights to contribution as such Bank.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Banks or their respective officers and of the Class B and
Class C Underwriter 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 Underwriter, each Bank or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Junior Notes. If for
any reason the purchase of the Junior Notes by the Underwriter is not
consummated, each Bank shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 6 and the respective obligations of the
Banks and the Class B and Class C Underwriter pursuant to Section 5, 6, 8 and 9
shall remain in effect. If the purchase of the Junior Notes by the Class B and
Class C Underwriter 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),
15
the Banks will reimburse the Class B and Class C Underwriter for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Junior Notes.
11. Notices. All communications hereunder will be in writing
and, if sent to the Class B and Class C Underwriter, will be mailed, delivered
or telegraphed and confirmed to the Class B and Class C Underwriter at Chase
Securities Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset Backed Finance Division, or, if sent to the Banks, will be
mailed, delivered, or telegraphed and confirmed to (i) Chase Manhattan Bank USA,
National Association, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Controller and (ii) The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Chief Financial Officer (cc: General Counsel).
12. Successors. This Agreement will inure to the benefit of,
and be binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than 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 Junior Notes
from the Class B and Class C Underwriter shall be deemed to be a successor by
reason merely of such purchase.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
14. No Bankruptcy Petition. The Class B and Class C
Underwriter covenants and agrees that, prior to the date which is one year and
one day after the payment in full of all securities issued by the Trust, it will
not institute against, or join any other person in instituting against, the
Trust any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or state bankruptcy or
similar law.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
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If the foregoing is in accordance with the Class B and Class C
Underwriter's understanding of our agreement, kindly sign and return to us the
enclosed duplicate hereof, whereupon it will become a binding agreement between
the Banks and the Class B and Class C Underwriter in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION
By
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
By
---------------------------------
Name:
Title:
The foregoing Class B and Class C
Underwriting Agreement is hereby
confirmed and accepted as of the
date first written above:
CHASE SECURITIES INC.
By
-------------------------------------
Name:
Title:
