Exhibit 1.2
CHASE MANHATTAN AUTO OWNER TRUST 2004-A
ASSET BACKED CERTIFICATES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Seller and Servicer
CERTIFICATE UNDERWRITING AGREEMENT
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March 3, 2004
▇.▇. ▇▇▇▇▇▇ 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 2004-A (the "Trust") to sell $40,000,000 aggregate
principal amount of 2.58% 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 March 4, 2004, 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 approximately
$1,600,000,000. The Certificates will be issued pursuant to the Amended and
Restated Trust Agreement to be dated as of March 4, 2004 (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 $309,000,000 aggregate principal
amount of Class A-1 1.08% Asset Backed Notes (the "Class A-1 Notes"),
$378,000,000 aggregate principal amount of Class A-2 1.45% Asset Backed Notes
(the "Class A-2 Notes"), $462,000,000 aggregate principal amount of Class A-3
2.08% Asset Backed Notes (the "Class A-3 Notes") and $411,000,000 aggregate
principal amount of Class A-4 2.83% 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 March 4, 2004
(as amended and supplemented from time to time, the "Indenture"), between the
Trust and ▇▇▇▇▇ Fargo Bank, 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
named therein (the "Note Underwriters"). The Notes and the Certificates are
sometimes referred to collectively herein as the "Securities".
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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 March 4, 2004 (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. 333-109768) 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.
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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 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 by the Owner
Trustee on behalf of the Issuer 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 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, 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.
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(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 99.722132% of the face amount thereof, the Certificates
plus accrued interest at the Certificate Rate from March 10, 2004 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP in New
York, New York at 10:00 a.m., New York City time, on March 10, 2004, 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; 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.
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(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 (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 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 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.
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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, JPMorgan Chase
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, JPMorgan Chase Bank 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 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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
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 Underwriter shall have received from Fried, Frank,
Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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 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.
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(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.
(m) 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 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).
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(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, 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 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.
11
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.
12
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 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 IN ACCORDANCE WITH, THE LAW 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: Vice President
The foregoing
Underwriting Agreement is
hereby confirmed and
accepted as of the date
first written above:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
