CHASE MANHATTAN AUTO OWNER TRUST 2001-B
ASSET BACKED CERTIFICATES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Seller and Servicer
CERTIFICATE UNDERWRITING AGREEMENT
----------------------------------
October 30, 2001
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 2001-B (the "Trust") to sell $32,503,047 aggregate principal
amount of 3.75% Asset Backed Certificates (the "Certificates"), each
representing a fractional undivided interest in the Trust.
The assets of the Trust will include, among other things, a pool of
simple interest retail installment sales contracts and purchase money notes
and other notes (the "Receivables") secured by new and used automobiles (the
"Financed Vehicles") and certain monies received thereunder on or after the
opening of business on November 1, 2001 (the "Cut-off Date"), 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
$1,299,883,047. The Certificates will be issued pursuant to the Amended and
Restated Trust Agreement to be dated as of November 1, 2001 (as amended and
supplemented from time to time, the "Trust Agreement"), between the Bank and
Wilmington Trust Company, as owner trustee (the "Owner Trustee").
Simultaneously with the issuance and sale of the Certificates as
contemplated herein, the Trust will issue $280,000,000 aggregate principal
amount of Class A-1 2.18% Asset Backed Notes (the "Class A-1 Notes"),
$300,000,000 aggregate principal amount of Class A-2 2.44% Asset Backed Notes
(the "Class A-2 Notes"), $365,000,000 aggregate principal amount of Class A-3
3.09% Asset Backed Notes (the "Class A-3 Notes") and $322,380,000 aggregate
principal amount of Class A-4 3.80% 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"), pursuant to the Indenture to be dated as of November 1,
2001 (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"), which will be sold pursuant to an
underwriting agreement dated the date hereof (the "Note Underwriting
Agreement"; together with this Agreement, the "Underwriting Agreements") among
the Bank and the underwriters
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named therein (the "Note Underwriters"). The Notes and the Certificates are
sometimes referred to collectively herein as the "Securities".
Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Sale and Servicing Agreement to be
dated as of November 1, 2001 (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
Certificates from the Bank by ▇.▇. ▇▇▇▇▇▇ Securities Inc. (the "Underwriter").
2. Representations and Warranties of the Bank. The Bank represents
and warrants to, and agrees with, the Underwriter, that:
(a) A registration statement on Form S-3 (No. 333-60994) 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 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 Bank has advised the Underwriter, 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
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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 the Underwriter 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 Note
Underwriters pursuant to the Note Underwriting 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 Underwriter pursuant to this 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 Note 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,
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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
Note Underwriting Agreement and the Basic Documents to which the 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 the
Bank, as Seller and Servicer, in the Trust Agreement will be true and correct.
(k) This Agreement and the Note Underwriting Agreement have been duly
executed and delivered by the Bank.
3. Purchase, Sale, Payment and Delivery of the Certificates. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Bank agrees to sell
to the Underwriter, and the Underwriter agrees, to purchase from the Bank, at
a purchase price of 99.723399% of the face amount thereof, the Certificates
plus accrued interest at the Certificate Rate from November 6, 2001 to but
excluding the Closing Date.
The Bank will deliver the Certificates to the Underwriter 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 November 6, 2001 or at such
other time not later than seven full business days thereafter as the
Underwriter and the Bank determine, such time being herein referred to as the
"Closing Date." The Certificates to be so delivered will be initially
represented by one or more definitive Certificates registered in the name of
Cede & Co., the nominee of The Depository Trust Company ("DTC") and will be
made available for inspection by the Underwriter at the office where delivery
and payment for such Certificates is to take place no later than 1:00 p.m.,
New York City time, on the Business Day prior to the Closing Date.
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4. Offering by the Underwriter. It is understood that the Underwriter
proposes to offer the Certificates 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
Underwriter 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 Underwriter of such timely
filing. During any period that a prospectus relating to the Certificates is
required to be delivered to purchasers of the Certificates by the Underwriter
and dealers participating in the initial offering and sale of the Certificates
on the Closing Date under the Act (without regard to any market making
prospectus required to be delivered by the Underwriter pursuant to 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 Underwriter, and if the Underwriter shall have reasonably objected
thereto promptly after receipt thereof; the 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 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 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) The Bank will furnish to the Underwriter copies of the
Registration Statement, each preliminary prospectus supplement relating to the
Certificates, the Prospectus, and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Underwriter may reasonably request.
(d) The Bank will cooperate with the Underwriter in arranging for the
qualification of the Certificates for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as the
Underwriter designates and will cooperate in continuing such qualifications in
effect so long as required for the distribution of the Certificates;
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provided, however, that neither the Bank nor the Trust shall be obligated to
qualify to do business in any jurisdiction in which it is not currently so
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
(e) For a period from the date of this Agreement until the retirement
of the Certificates, the Bank, as Servicer, will furnish to the Underwriter
copies of each certificate and the annual statements of compliance delivered
to 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 Certificates is outstanding, the Bank will
furnish to the Underwriter as soon as practicable, (A) all documents
distributed, or caused to be distributed, by the Bank to the
Certificateholders, (B) all documents filed, or caused to be filed, by the
Bank with respect to the Trust with the Commission pursuant to the Securities
Exchange Act of 1934, as amended, 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 Underwriter 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 Certificates 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 Underwriter, 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
7
sky expenses; provided, however, that the Underwriter may reimburse the Bank
for certain expenses incurred by the Bank as agreed to by the Underwriter and
the Bank.
7. Conditions to the Obligation of the Underwriter. The obligation of
the Underwriter to purchase and pay for the Certificates will be subject to
the accuracy of the representations and warranties on the part of the Bank
herein on the date hereof and as of the Closing Date, to the accuracy of the
statements of officers of the Bank made pursuant to the provisions hereof, to
the performance by the Bank of its obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date hereof, the Underwriter 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
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 Underwriter 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 or ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. which, in the reasonable
judgment of the Underwriter, materially impairs the investment quality of
the Certificates or makes it impractical to market the Certificates; (ii)
any suspension or material limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any securities
of the Bank or ▇.▇. ▇▇▇▇▇▇ Chase & 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 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 Certificates.
(d) The Underwriter shall have received opinions, dated the Closing
Date and reasonably satisfactory, when taken together, in form and
substance to the Underwriter, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special
counsel to the Bank, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special counsel to
the Trust, and such other counsel otherwise reasonably acceptable to the
Underwriter, with respect to such matters as are customary for the type of
transaction contemplated by this Agreement.
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(e) The Underwriter 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 Underwriter,
with respect to certain matters relating to the transfers of the
Receivables from the Bank to the Trust and with respect to a grant of a
security interest in the Receivables to the Indenture Trustee, and an
opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special counsel to the Bank,
with respect to the perfection of the Trust's and the Indenture Trustee's
interests in the Receivables.
(f) The Underwriter shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
Wood LLP, counsel to the Underwriter, such opinion or opinions, dated the
Closing Date and satisfactory in form and substance to the Underwriter,
with respect to the validity of the Certificates, the Registration
Statement, the Prospectus and other related matters as the Underwriter 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 Underwriter 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 "Certain 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 matters described
therein in all material respects.
(h) The Underwriter shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., special counsel to the Owner Trustee, and such
other counsel reasonably satisfactory to the Underwriter and its counsel,
dated the Closing Date and satisfactory in form and substance to the
Underwriter, with respect to such matters as are customary for the type of
transaction contemplated by this Agreement.
(i) The Certificates have been rated "A" by Standard & ▇▇▇▇'▇, "▇▇"
by ▇▇▇▇▇'▇ and "A+" by Fitch.
(j) The Underwriter 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
9
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, all of the Notes shall have been issued and
sold pursuant to the Note Underwriting Agreement.
(l) The Class A-1 Notes shall have been rated "A-1+" by Standard &
Poor's, "P-1" by ▇▇▇▇▇'▇ and "F1+" by Fitch, and 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 Bank will furnish the Underwriter, or cause the 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 Bank will indemnify and hold harmless the
Underwriter against any losses, claims, damages or liabilities, to which the
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 the 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 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 the Underwriter expressly for use therein
and (ii) such indemnity with respect to any preliminary prospectus supplement
shall not inure to the benefit of the Underwriter (or any person controlling
the Underwriter) from whom the person asserting any such loss, claim, damage
or liability purchased the Certificates which are the subject thereof if such
person did not receive a copy of the Prospectus (or the Prospectus as
supplemented) at or prior to the confirmation of the sale of such Certificates
to such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such preliminary
prospectus supplement was corrected in the Prospectus (or the Prospectus as
supplemented).
(b) The Underwriter agrees to indemnify and hold harmless the Bank, its
directors, each of its officers or agents who signed the Registration
Statement, and each person,
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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 the Underwriter 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.
(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 the
Underwriter within the meaning of the Act; and the Underwriter's obligations
under this Section 8 shall be in addition to any liability which the
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 Underwriter 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 Underwriter, as incurred, in
such proportions so that the 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 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 the
11
Underwriter within the meaning of Section 15 of the Act shall have the same
rights to contribution as the 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. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Bank or its officers and of the 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, the Bank or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and
payment for the Certificates. If for any reason the purchase of the
Certificates by the Underwriter 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 Underwriter
pursuant to Sections 8 and 9 shall remain in effect. If the purchase of the
Certificates by the 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), the Bank will reimburse the Underwriter for all
out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by it in connection with the offering of the Certificates.
11. Notices. All communications hereunder will be in writing and, if sent
to the Underwriter, will be mailed, delivered or telegraphed and confirmed to
the Underwriter 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.
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
Certificates from the 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 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
12
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.
13
If the foregoing is in accordance with the 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 Bank and the
Underwriter in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name:
Title:
The foregoing
Underwriting Agreement is
hereby confirmed
and accepted as of the date
first written above:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name:
Title:
