EXHIBIT 1.1
CHASE MANHATTAN AUTO OWNER TRUST 2002-B
ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Seller and Servicer
NOTE UNDERWRITING AGREEMENT
---------------------------
May 30, 2002
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representative of the
Several Underwriters,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. Chase Manhattan Bank USA, National Association, a
national banking association (the "Bank"), proposes to form Chase Manhattan Auto
Owner Trust 2002-B (the "Trust") to sell $288,000,000 aggregate principal amount
of Class A-1 1.9291% Asset Backed Notes (the "Class A-1 Notes"), $335,000,000
aggregate principal amount of Class A-2 2.70% Asset Backed Notes (the "Class A-2
Notes"), $365,000,000 aggregate principal amount of Class A-3 3.58% Asset Backed
Notes (the "Class A-3 Notes") and $345,800,000 aggregate principal amount of
Class A-4 4.21% Asset Backed Notes (the "Class A-4 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the "Notes").
The assets of the Trust will include, among other things, a pool of
simple interest retail installment sales contracts and purchase money notes and
other notes (the "Receivables") secured by new and used automobiles (the
"Financed Vehicles") and certain monies received thereunder on or after the
opening of business on June 1, 2002, 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 will equal $1,368,000,000. The Notes
will be issued pursuant to the Indenture to be dated as of June 1, 2002 (as
amended and supplemented from time to time, the "Indenture"), between the Trust
and ▇▇▇▇▇ Fargo 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 $34,200,000 aggregate principal amount of 4.24%
Asset Backed Certificates (the "Certificates") pursuant to the Amended and
Restated Trust Agreement to be dated as of June 1, 2002 (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") among the Bank and the underwriter named therein (the
"Certificate Underwriter"). 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, 2002 (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 ▇.▇. ▇▇▇▇▇▇ 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. 333-74600) has been filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended (the "Act"), and
the Rules and Regulations under the Act (the "Rules and Regulations"). Such
registration statement, as amended on the date that such registration statement
or the most recent post-effective amendment thereto became effective under the
Act, including the exhibits thereto, is hereinafter referred to as the
"Registration Statement." The Registration Statement has become effective, and
no stop order suspending the effectiveness of the Registration Statement has
been issued, and no proceeding for that purpose has been instituted or, to the
knowledge of the Bank, threatened by the Commission. The conditions to the use
of a registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, and the conditions of Rule 415 of the Rules
and Regulations, have been satisfied with respect to the Registration Statement.
The Bank proposes to file with the Commission pursuant to Rule 424(b) of the
Rules and Regulations a prospectus supplement to the Base Prospectus (as defined
herein) relating to the sale of the Securities (the "Prospectus Supplement").
The base prospectus filed as part of the Registration Statement, in the form it
appears in the Registration Statement, or in the form most recently revised and
filed with the Commission pursuant to Rule 424(b), is hereinafter referred to as
the "Base Prospectus." The Base Prospectus as supplemented by the Prospectus
Supplement is hereinafter referred to as the "Prospectus."
(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.
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(c) The Registration Statement, at the time it became effective, and
the Prospectus, as of the date of the Prospectus Supplement, complied in all
material respects with the applicable requirements of the Act and the Trust
Indenture Act of 1939 and the Rules and Regulations and did not include any
untrue statement of a material fact and, in the case of the Registration
Statement, did not omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and, in the case of
the Prospectus, did not omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading; on the Closing Date (as defined herein), the Registration
Statement and the Prospectus, as amended or supplemented as of the Closing Date,
will comply in all material respects with the applicable requirements of the Act
and the Rules and Regulations, and neither the Prospectus nor any amendment or
supplement thereto will include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that the Bank makes no representation and warranty with respect to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon, or in conformity with, information furnished in
writing to the Bank by or on behalf of any Underwriter through the
Representative specifically for use in connection with the preparation of the
Registration Statement or the Prospectus.
(d) The Bank is a national banking association organized under the laws
of the United States, with full power and authority to own its properties and
conduct its business as described in the Prospectus, and had at all relevant
times and has power, authority and legal right to acquire, own, sell and service
the Receivables.
(e) When the Notes have been duly executed and delivered by the Owner
Trustee and, when authenticated by the Indenture Trustee in accordance with the
Indenture and delivered upon the order of the Bank to the Underwriters pursuant
to this Agreement and the Sale and Servicing Agreement, the Notes will be duly
issued and will constitute legal, valid and binding obligations of the Trust
enforceable against the Trust in accordance with their terms, except to the
extent that the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, conservatorship, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights as such laws would apply in
the event of the insolvency, liquidation or reorganization or other similar
occurrence with respect to the Bank or the Trust or in the event of any
moratorium or similar occurrence affecting the Bank or the Trust and to general
principles of equity.
(f) The direction by the Bank to the Owner Trustee to execute and
authenticate the Certificates has been duly authorized by the Bank and, when the
Certificates have been duly executed, authenticated and delivered by the Owner
Trustee in accordance with the Trust Agreement and delivered upon the order of
the Bank to the Certificate Underwriter 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.
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(g) The execution, delivery and performance by the Bank of this
Agreement, the Certificate Underwriting Agreement and the Basic Documents to
which the Bank is a party, and the consummation by the Bank of the transactions
provided for herein and therein have been, or will have been, duly authorized by
the Bank by all necessary action on the part of the Bank; and neither the
execution and delivery by the Bank of such instruments, nor the performance by
the Bank of the transactions herein or therein contemplated, nor the compliance
by the Bank with the provisions hereof or thereof, will (i) conflict with or
result in a breach or violation of any of the material terms and provisions of,
or constitute a material default under, any of the provisions of the articles of
association or by-laws of the Bank, (ii) conflict with any of the provisions of
any law, governmental rule, regulation, judgment, decree or order binding on the
Bank or its properties, (iii) conflict with any of the material provisions of
any material indenture, mortgage, contract or other instrument to which the Bank
is a party or by which it is bound, or (iv) result in the creation or imposition
of any lien, charge or encumbrance upon any of its property pursuant to the
terms of any such indenture, mortgage, contract or other instruments, except, in
the case of clauses (ii) and (iii), for any such breaches or conflicts as would
not individually or in the aggregate have a material adverse effect on the
transactions contemplated hereby or on the ability of the Bank to consummate
such transactions.
(h) When executed and delivered by the parties thereto, each of the
Sale and Servicing Agreement and the Trust Agreement will constitute a legal,
valid and binding obligation of the Bank, enforceable against the Bank in
accordance with its terms, except to the extent that the enforceability thereof
may be subject to bankruptcy, insolvency, reorganization, conservatorship,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights as such laws would apply in the event of the insolvency,
liquidation or reorganization or other similar occurrence with respect to the
Bank or in the event of any moratorium or similar occurrence affecting the Bank
and to general principles of equity.
(i) All approvals, authorizations, consents, orders or other actions of
any person, corporation or other organization, or of any court, governmental
agency or body or official (except with respect to the state securities or "blue
sky" laws of various jurisdictions), if so required in connection with the
execution, delivery and performance of this Agreement, the Certificate
Underwriting Agreement and the Basic Documents to which the Bank is a party,
have been or will be taken or obtained on or prior to the Closing Date.
(j) As of the Closing Date, the representations and warranties of the
Bank, as Seller and Servicer, in the Trust Agreement will be true and correct.
(k) This Agreement and the Certificate Underwriting Agreement have been
duly executed and delivered by the Bank.
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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 99.868987%
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 99.814976% 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 99.751078% 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 6, 2002 to but excluding the
Closing Date.
The Bank will deliver the Notes to the Representative for the
respective accounts of the Underwriters against payment of the purchase price in
immediately available funds drawn to the order of the Bank at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in New York, New York at 10:00 a.m., New York City
time, on June 6, 2002 or at such other time not later than seven full business
days thereafter as the Representative and the Bank determine, such time being
herein referred to as the "Closing Date." The Notes of each class to be so
delivered will be initially represented by one or more definitive Notes
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC") and will be made available for inspection by the Representative
at the office where delivery and payment for such Notes is to take place no
later than 1:00 p.m., New York City time, on the Business Day prior to the
Closing Date.
4. Offering by the Underwriters. It is understood that the Underwriters
propose to offer the Notes for sale to the public (which may include selected
brokers and dealers) as set forth in the Prospectus.
5. Covenants of the Bank. The Bank covenants and agrees with the
Underwriters that:
(a) The Bank will file the Prospectus with the Commission pursuant to
Rule 424(b) of the Rules and Regulations within the time prescribed therein and
will provide evidence satisfactory to the Representative of such timely filing.
During any period that a prospectus relating to the Notes is required to be
delivered to purchasers of the Notes by the Underwriters and dealers
participating in the initial offering and sale of the Notes on the Closing Date
under the Act (without regard to any market making prospectus required to be
delivered by any Underwriter under the Act) (a "prospectus delivery period"),
the Bank will not file any amendments to the Registration Statement, or any
amendments or supplements to the Prospectus unless it shall first have delivered
copies of such amendments or supplements to the Representative, and if the
Representative shall have reasonably objected thereto promptly after receipt
thereof; the Bank will promptly advise the Representative or its counsel (i)
when notice is received from the Commission that any post-effective amendment to
the Registration Statement has become or will become effective, (ii) of any
request by the Commission for any amendment or supplement to the Registration
Statement or the Prospectus or for any additional information and (iii) of any
order or communication suspending or preventing, or threatening to suspend or
prevent, the offer and sale of the Notes or of any proceedings or examinations
that may lead to such an order or communication, whether by or of the Commission
or any 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.
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(b) If, at any time during the prospectus delivery period, any event
occurs as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
at any time to amend the Prospectus in order to comply with the Act or the Rules
and Regulations, the Bank promptly will prepare and file with the Commission
(subject to the Representative's prior review pursuant to paragraph (a) of this
Section 5), an amendment or supplement which will correct such statement or
omission or an amendment or supplement which will effect such compliance.
(c) The Bank will furnish to the Representative copies of the
Registration Statement, each preliminary prospectus supplement relating to the
Notes, the Prospectus, and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the Representative may
reasonably request.
(d) The Bank will cooperate with the Representative in arranging for
the qualification of the Notes for sale and the determination of their
eligibility for investment under the laws of such jurisdictions, or as necessary
to qualify for the Euroclear System or Clearstream Banking, societe anonyme, as
the Representative designates and will cooperate in continuing such
qualifications in effect so long as required for the distribution of the Notes;
provided, however, that neither the Bank nor the Trust shall be obligated to
qualify to do business in any jurisdiction in which it is not currently so
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
(e) For a period from the date of this Agreement until the retirement
of the Notes, the Bank, as Servicer, will furnish to the Representative copies
of each certificate and the annual statements of compliance delivered to the
Noteholders and the independent certified public accountants' reports furnished
to the Indenture Trustee or the Owner Trustee pursuant to the Sale and Servicing
Agreement, as soon as practicable after such statements and reports are
furnished to the Indenture Trustee or the Owner Trustee.
(f) So long as any of the Notes is outstanding, the Bank will furnish
to the Representative as soon as practicable, (A) all documents distributed, or
caused to be distributed, by the Bank to the Noteholders, (B) all documents
filed, or caused to be filed, by the Bank with respect to the Trust with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and any order of the Commission thereunder or pursuant to a
"no-action" letter from the staff of the Commission and (C) from time to time,
such other information in the possession of the Bank concerning the Trust and
any other information concerning the Bank filed with any governmental or
regulatory authority which is otherwise publicly available, as the
Representative may reasonably request.
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(g) On or before the Closing Date, the Bank shall cause its computer
records relating to the Receivables to be marked to show the Trust's absolute
ownership of the Receivables, and from and after the Closing Date neither the
Bank nor the Servicer shall take any action inconsistent with the Trust's
ownership of such Receivables and the security interest of the Indenture Trustee
therein, other than as permitted by the Sale and Servicing Agreement.
(h) To the extent, if any, that the rating provided with respect to the
Notes by Standard & Poor's, ▇▇▇▇▇'▇ and/or Fitch is conditional upon the
furnishing of documents or the taking of any other actions by the Bank agreed
upon on or prior to the Closing Date, the Bank shall furnish such documents and
take any such other actions.
(i) For the period beginning on the date hereof and ending on the
Closing Date, unless waived by the Representative, neither the Bank nor any
trust originated, directly or indirectly, by the Bank will offer to sell or sell
notes (other than the Notes) collateralized by, or certificates (other than the
Certificates) evidencing an ownership interest in, receivables generated
pursuant to retail automobile or light-duty truck installment sale contracts or
purchase money loans.
6. Payment of Expenses. The Bank will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the Indenture Trustee's and Owner Trustee's acceptance
fee and the reasonable fees and disbursements of the counsel to the Indenture
Trustee and counsel to the Owner Trustee, (iii) the fees and disbursements of
PricewaterhouseCoopers 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. Conditions to the Obligations of the Underwriters. The obligation of
the several Underwriters to purchase and pay for the Notes will be subject to
the accuracy of the representations and warranties on the part of the Bank
herein on the date hereof and as of the Closing Date, to the accuracy of the
statements of officers of the Bank made pursuant to the provisions hereof, to
the performance by the Bank of its obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date hereof, the Representative shall
have received a letter (a "Procedures Letter"), dated the date of this
Agreement of PricewaterhouseCoopers 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.
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(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, JPMorgan Chase or
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. 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,
JPMorgan Chase or ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. on any exchange or in the
over-the-counter market by such exchange or over-the-counter market or
by the Commission; (iii) any banking moratorium declared by federal or
New York authorities; or (iv) any outbreak or material escalation of
major hostilities or any other substantial national or international
calamity or emergency if, in the reasonable judgment of the
Representative, the effect of any such outbreak, escalation, calamity
or emergency on the United States financial markets makes it
impracticable or inadvisable to proceed with completion of the sale of
and any payment for the Notes.
(d) The Representative shall have received opinions, dated the
Closing Date and reasonably satisfactory, when taken together, in form
and substance to the Representative, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
special counsel to the Bank, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special
counsel to the Trust, and such other counsel otherwise reasonably
acceptable to the Representative, with respect to such matters as are
customary for the type of transaction contemplated by this Agreement.
(e) The Representative shall have received an opinion or
opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Bank,
dated the Closing Date and reasonably satisfactory in form and
substance to the Representative, with respect to certain matters
relating to the treatment of the transfer of the Receivables from the
Bank to the Trust by the Federal Deposit Insurance Corporation and with
respect to a grant of a security interest in the Receivables to the
Indenture Trustee, and an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.,
special counsel to the Bank, with respect to the perfection of the
Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Underwriters, such opinion or
opinions, dated the Closing Date and satisfactory in form and substance
to the Representative, with respect to the validity of the Notes, the
Registration Statement, the Prospectus and other related matters as the
Representative may require, and the Bank shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Representative shall have received an opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special tax counsel to the Bank, dated the
Closing Date and reasonably satisfactory in form and to the effect (a)
that under current law the Notes will be characterized as debt, and the
Trust will not be characterized as an association (or a publicly traded
partnership) taxable as a corporation for United States federal income
tax purposes and (b) that, subject to the qualifications set forth
therein, the statements made in the Prospectus Supplement under the
caption "Material Federal Income Tax Consequences", insofar as they
purport to constitute summaries of matters of United States federal tax
law and regulations or legal conclusions with respect thereto,
constitute accurate summaries of the United States federal income tax
matters described therein.
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(h) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special counsel to the Owner Trustee,
and such other counsel reasonably satisfactory to the Representative
and its counsel, dated the Closing Date and satisfactory in form and
substance to the Representative, with respect to such matters as are
customary for the type of transaction contemplated by this Agreement.
(i) The Class A-1 Notes shall have been rated "A-1+" by
Standard & Poor's, "P-1" by ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ and "AAA" by Fitch. The
Certificates shall have been rated "A" by Standard & ▇▇▇▇'▇, "▇▇" by
▇▇▇▇▇'▇ and "A" by Fitch.
(j) The Representative shall have received a certificate,
dated the Closing Date, of an attorney-in-fact, a Vice President or
more senior officer of the Bank in which such person, to the best of
his or her knowledge after reasonable investigation, shall state that
(i) the representations and warranties of the Bank in this Agreement
are true and correct in all material respects on and as of the Closing
Date, (ii) the Bank has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, (iii) the representations and warranties of
the Bank, as Seller and Servicer, in the Sale and Servicing Agreement
and, as Depositor, in the Trust Agreement, are true and correct as of
the dates specified in the Sale and Servicing Agreement and the Trust
Agreement, (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are threatened by the Commission, (v)
subsequent to the date of the Prospectus, there has been no material
adverse change in the financial position or results of operation of the
Bank's automotive finance business except as set forth in or
contemplated by the Prospectus or as described in such certificate and
(vi) the Prospectus does not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(k) On the Closing Date, $34,200,000 aggregate amount of
Certificates shall have been issued and sold pursuant to the
Certificate Underwriting Agreement.
(l) On the Closing Date, the Class R Certificate shall have
been issued to the Bank pursuant to the Trust 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.
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8. Indemnification. (a) The Bank will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of, or are based upon, any untrue statement or alleged untrue statement of any
material fact contained in any preliminary prospectus supplement, the
Registration Statement, the Prospectus (other than any market making prospectus)
or any amendment or supplement thereto, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim; provided, however, that (i) the Bank shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of, or is based upon, an untrue statement or alleged untrue statement
or omission or alleged omission made in any preliminary prospectus supplement,
the Registration Statement or the Prospectus or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Bank by any Underwriter through the Representative expressly for use therein and
(ii) such indemnity with respect to any preliminary prospectus supplement shall
not inure to the benefit of any Underwriter (or any person controlling any such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Notes which are the subject thereof if such person did
not receive a copy of the Prospectus (or the Prospectus as supplemented) at or
prior to the confirmation of the sale of such Notes to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in such preliminary prospectus supplement was
corrected in the Prospectus (or the Prospectus as supplemented).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Bank, its directors, each of its officers or agents who signed the
Registration Statement, and each person, if any, who controls the Bank within
the meaning of Section 15 of the Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section 8, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in any preliminary
prospectus supplement, the Registration Statement or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Bank by such Underwriter through the Representative
expressly for use in such preliminary prospectus supplement, the Registration
Statement or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to the indemnifying
party of any action commenced against the indemnified party in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have hereunder or otherwise, other than on account of this indemnity agreement.
In case any such action shall be 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.
11
(d) The obligations of the Bank under this Section 8 shall be in
addition to any liability which the Bank may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and each Underwriter's obligations
under this Section 8 shall be in addition to any liability which such
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Bank and to each person, if any,
who controls the Bank within the meaning of Section 15 of the Act.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 is for any reason held to be unavailable other than in accordance with
its terms, the Bank and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Bank or the Underwriters, as incurred,
in such proportions so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount and commissions
bear to the initial public offering price appearing thereon and the Bank is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act shall
have the same rights to contribution as such Underwriter, and each director of
the Bank, each officer or agent of the Bank who signed the Registration
Statement, and each person, if any, who controls the Bank within the meaning of
Section 15 of the Act shall have the same rights to contribution as the Bank.
10. Default of Underwriters. If any Underwriter defaults in its
obligations to purchase Notes hereunder and the aggregate principal amount of
the Notes that such defaulting Underwriter agreed but failed to purchase does
not exceed 10% of the total principal amount of Notes, the Representative may
make arrangements satisfactory to the Bank for the purchase of such Notes by
other persons, including the non-defaulting Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Notes that such defaulting Underwriter agreed but failed to
purchase. If any Underwriter so defaults and the aggregate principal amount of
the Notes with respect to which such default or defaults occur exceeds 10% of
the total principal amount of the Notes and arrangements satisfactory to the
Representative and the Bank for the purchase of such Notes by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Bank,
except as provided in Section 11. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
12
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Bank or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation or statement as to the results thereof, made by or on behalf of
the Underwriters, the Bank or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Notes. If for any reason the purchase of the Notes by the Underwriters
is not consummated, the Bank shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 6 and the respective obligations of
the Bank and the Underwriters pursuant to Sections 8 and 9 shall remain in
effect. If the purchase of the Notes by the Underwriters is not consummated for
any reason other than solely because of the occurrence of any event specified in
clauses (ii), (iii) or (iv) of Section 7(c), the Bank will reimburse each
Underwriter for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by it in connection with the offering of the Notes.
12. Notices. All communications hereunder will be in writing and, if
sent to the Representative or the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representative at ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: North American
ABS, or, if sent to the Bank, will be mailed, delivered, or telegraphed and
confirmed to Chase Manhattan Bank USA, National Association, c/o Chase Manhattan
Automotive Finance Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Financial Controller.
13. Successors. This Agreement will inure to the benefit of, and be
binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. No Bankruptcy Petition. Each Underwriter covenants and agrees that,
prior to the date which is one year and one day after the payment in full of all
securities issued by the Trust, it will not institute against, or join any other
person in instituting against, the Trust any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
any Federal or state bankruptcy or similar law.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to us the enclosed
duplicate hereof, whereupon it will become a binding agreement among the Bank
and the several Underwriters in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Note
Underwriting Agreement
is hereby confirmed
and accepted as of
the date first
written above:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
on behalf of itself and
as Representative
of the Several Underwriters,
named in Schedule I
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SCHEDULE I
Principal Amount of Principal Amount of Principal Amount Principal Amount
Underwriter Class A-1 Notes Class A-2 Notes of Class A-3 Notes of Class A-4 Notes
----------- ------------------- ------------------ ------------------ -------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. ........ $ 92,668,000 $108,334,000 $116,668,000 $111,934,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. ........... $ 92,666,000 $108,333,000 $116,666,000 $111,933,000
Countrywide Securities Corporation . $ 92,666,000 $108,333,000 $116,666,000 $111,933,000
Loop Capital Markets, LLC ......... $ 10,000,000 $ 10,000,000 $ 15,000,000 $ 10,000,000
------------ ------------ ------------ ------------
Total ..................... $288,000,000 $335,000,000 $365,000,000 $345,800,000
============ ============ ============ ============
