FORM OF CERTIFICATE
UNDERWRITING AGREEMENT
(OWNER TRUST)
CHASE MANHATTAN AUTO OWNER TRUST ____- _
ASSET BACKED CERTIFICATES
CHASE MANHATTAN BANK USA, N.A.
Seller and Servicer
CERTIFICATE UNDERWRITING AGREEMENT
Ladies and Gentlemen:
1. Introductory. Chase Manhattan Bank USA, N.A., a national banking
association (the "Bank"), proposes to form Chase Manhattan Auto Owner Trust
199_-_ (the "Trust") to sell $__________ aggregate principal amount of ______%
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 and after the Cutoff Date
(as hereinafter defined), such Receivables to be transferred to the Trust and
serviced by the Bank, as Servicer, or by a successor Servicer. The Original Pool
Balance of the Receivables as of the close of business on ___________, ____ (the
"Cut-off Date") was equal to $____________. The Certificates will be issued
pursuant to the Amended and Restated Trust Agreement to be dated as of
___________, ____ (as amended and supplemented from time to time, the
"Trust Agreement"), between the Bank and _________________, as owner
trustee (the "Owner Trustee").
Simultaneously with the issuance and sale of the Certificates as
contemplated herein, the Trust will issue $___________ aggregate principal
amount of Class A-l ___% Money Market Asset Backed Notes (the "Class A-l
Notes"), $___________ aggregate principal amount of Class A-2 _____% Asset
Backed Notes (the "Class A-2 Notes"), $___________ aggregate principal amount of
Class A-3 _____% Asset Backed Notes (the "Class A-3 Notes") $___________
aggregate principal amount of Class A-4 _____% Asset Backed Notes (the "Class
A-4 Notes") and $__________ aggregate principal amount of Class [A-5] [B] _____%
Asset Backed Notes (the "Class [A-5] [B] Notes" and, together with the Class A-l
Notes, the Class A-2 Notes, the Class A-3 Notes, and the Class A-4 Notes, the
"Notes"), pursuant to the Indenture to be dated as of ___________, _____ (as
amended and supplemented from time to
time, the "Indenture"), between the Trust and ________________________
____________, ____________, 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".
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 ___________, ____ (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 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-____) 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 under 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 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, or (ii) conflict with any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Bank or
its properties, or (iii) conflict with any of the material provisions of any
material indenture, mortgage, contract or other instrument to which the Bank is
a party or by which it is bound, or (iv) result in the creation or imposition of
any lien, charge or encumbrance upon any of its property pursuant to the terms
of any such indenture, mortgage, contract or other instruments, except, in the
case of clauses (ii) and (iii), for any such breaches or conflicts as would not
individually or in the aggregate have a material adverse effect on the
transactions contemplated hereby or on the ability of the Bank to consummate
such transactions;
(h) When executed and delivered by the parties thereto, each of the Sale
and Servicing Agreement and the Trust Agreement will constitute a legal, valid
and binding obligation of the Bank, enforceable against the Bank in accordance
with its terms, except to the extent that the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, conservatorship, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
as such laws would apply in the event of the insolvency, liquidation or
reorganization or other similar occurrence with respect to the Bank or in the
event of any moratorium or similar occurrence affecting the Bank and to general
principles of equity;
(i) All approvals, authorizations, consents, orders or other actions of any
person, corporation or other organization, or of any court, governmental agency
or body or official (except with respect to the state securities or "blue sky"
laws of various jurisdictions), if so required in connection with the
execution, delivery and performance of this Agreement, the 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 has 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 ___________% of the face amount thereof, the Certificates plus
accrued interest at the Certificate Rate from _____ _____, _____ 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 ______ _________, ____ 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"), except for a Certificate registered in the
name of Chase Securities Inc. in an amount of $_______, 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.
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 under the
Act to be delivered to purchasers of the Certificates by the underwriters 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.
(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
_______________ and _____________________, (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.
7. Conditions to the Obligations 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 each of __________________ and
__________________ 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,
Chase or The Chase Manhattan Corporation 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, Chase or The Chase Manhattan
Corporation on any exchange or in the over-the-counter market
by such exchange 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,
__________________ , 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;
(e) The Underwriter shall have received an opinion
or opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to
the Bank, dated the Closing Date and 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
___________________, Special Counsel to the Trust, 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
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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 substance to the Underwriter, with respect to such
matters as are customary for the type of transaction
contemplated by this Agreement;
(h) The Underwriter shall have received an opinion
of counsel to the Indenture Trustee, dated the Closing Date
and satisfactory in form and substance to the Underwriter with
respect to such matters as are customary for the transactions
contemplated by this Agreement;
In rendering such opinions, counsel to the Indenture Trustee
may rely on the opinion of the office of the general counsel to the Indenture
Trustee.
(i) The Underwriter shall have received an opinion
of 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;
(j) The Certificates have been rated "___" by
[Standard & Poor's], "____" by [▇▇▇▇▇'▇] and "____" by
[Fitch];
(k) 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) that 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) that no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are threatened by the Commission, (v) that, subsequent to the
date of the Prospectus, there has been no material adverse
change in the financial position or results of operation of
the Bank's automotive finance business except as set forth in
or contemplated by the Prospectus or as described in such
certificate and (vi) the Prospectus does not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(1) On the Closing Date, all of the Notes shall
have been issued and sold pursuant to the Note Underwriting
Agreement; and
(m) The Class A-1 Notes shall have been rated
"____" by [Standard & Poor's], "____" by [▇▇▇▇▇'▇] and
"____" by [Fitch], and the Class A-2 Notes, Class A-3
Notes, Class A-4 Notes and Class [A-5] [B] Notes shall
have been rated "____" by [Standard & Poor's], "____" by
[▇▇▇▇▇'▇] and "____" 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 any 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, 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.
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 Section 5, 6, 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 Chase Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Finance Division, or, if sent to the
Bank, will be mailed, delivered, or telegraphed and confirmed to Chase Manhattan
Bank USA, National Association c/o Chase Manhattan Automotive Finance
Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
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 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.
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 _____________________________
Name:
Title:
The foregoing
Underwriting Agreement is
hereby confirmed and
accepted as of the date
first written above:
By ____________________________
Name:
Title:
