FORM OF
UNDERWRITING AGREEMENT
(NOTES)
OH&S DRAFT
8/26/96
CHASE MANHATTAN AUTO OWNER TRUST 199_-_
ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, N.A.
Seller And Servicer
NOTE UNDERWRITING AGREEMENT
_______________, 1996
Chase Securities Inc.,
As Representative of the
Several Underwriters,
270 Park Avenue
New York, NY 10017
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 Class
A-1 ___% Asset Backed Notes (the "Class A-1 Notes) and $_____________ aggregate
principal amount of Class A-2 ___% Asset Backed Notes (the "Class A-2 Notes";
and together with the Class A-1 Notes, the "Notes").
The assets of the Trust will include, among other things, a pool of
simple interest [and actuarial method] retail installment sales contracts and
purchase money loans (the "Receivables") secured by new and used automobiles
(the "Financed Vehicles") and certain monies due or to become due [or received]
thereunder on or after the Cutoff Date (as hereinafter defined), such
Receivables to be sold 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
opening of business on ____________, 199_ (the "Cut-off Date") shall be equal
$____________. The Notes will be issued pursuant to the Indenture to be dated as
of ____________, 199_ (as amended and supplemented from time to time, the
"Indenture"), between the Trust and ____________________, as indenture trustee
(the "Indenture Trustee").
Simultaneously with the issuance and sale of the Notes as
contemplated herein, the Trust will issue $_____________ aggregate principal
amount of ___% Asset Backed Certificates (the "Certificates") pursuant to the
Amended and Restated Trust Agreement to be dated as of ___________, 1996 (as
amended and supplemented from time to time, the "Trust Agreement"), among the
1
Bank, _______________________, as General Partner (the "General Partner") and
_______________________, as owner trustee (the "Owner Trustee"), each
representing a fractional undivided ownership interest in the Trust, which will
be sold pursuant to an underwriting agreement dated the date hereof (the
"Certificate Underwriting Agreement"; together with this Note Underwriting
Agreement, the "Underwriting Agreements") among the Bank and the Underwriters
named in Schedule I hereto. 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 ____________, 199_ (as amended and supplemented from time to time,
the "Sale and Servicing Agreement"), between the Trust and the Bank, as Seller
and Servicer.
This is to confirm the agreement concerning the purchase of the
Notes from the Bank by the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom, Chase Securities Inc. is acting as representative
(the "Representative").
2. Representations and Warranties of the Bank. The Bank represents
and warrants to, and agrees with, the Underwriters, that:
(a) A registration statement on Form S-3 (No. 333- _____) 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 Act, 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."
2
The Base Prospectus as supplemented by the Prospectus Supplement is hereinafter
referred to as the "Prospectus".
(b) Except to the extent that the Representative shall have agreed
to a modification, the Prospectus shall be in all substantive respects in the
form furnished to the Representative prior to the execution of this Agreement
or, to the extent not completed at such time, shall contain only such material
changes as the Bank has advised the Representative, prior to such time, will be
included or made therein.
(c) The Registration Statement, at the time it becomes 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 to information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon, or in conformity with, information furnished in writing to the
Bank by or on behalf of any Underwriter through the Representative specifically
for use in connection with the preparation of the Registration Statement or the
Prospectus.
(d) The Bank is a national banking association organized under the
laws of the United States, with full power and authority to own its properties
and conduct its business as described in the Prospectus, and had at all relevant
times and has power, authority and legal right to acquire, own, sell and service
the Receivables.
(e) When the Notes have been duly executed and delivered by the
Owner Trustee and, when authenticated by the Indenture Trustee in accordance
with the Indenture and delivered and paid for pursuant
3
to the Note Underwriting Agreement, the Notes will be validly 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 in the event of any moratorium or 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.
(f) When the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the Trust Agreement and
delivered and paid for pursuant to this Agreement, will be validly 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, Certificate Underwriting Agreement, and Basic Documents, 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.
(h) When executed and delivered by the parties thereto, each of the
Sale and Servicing Agreement, the Trust Agreement and the Administration
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.
4
(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), required in connection with the execution,
delivery and performance of this Agreement, the Certificate Underwriting
Agreement and the Basic Documents has been or will be taken or obtained on or
prior to the Closing Date.
(j) As of the Closing Date, the representation and warranties of the
Bank, as Seller and Servicer, and of the General Partner in the Basic Documents
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 Notes. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Bank agrees to cause the Trust
to sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Trust, (a) at a purchase price of [_____]% of the
principal amount thereof, the respective principal amount of the Class A-1 Notes
set forth opposite the name of such Underwriter in Schedule I hereto and (b) at
a purchase price of [_____]% of the principal amount thereof, the respective
principal amount of the Class A-2 Notes set forth opposite the name of such
Underwriter in Schedule I hereto [, plus accrued interest, if any, from
_____________, 199_].
The Bank will deliver the Notes to the Representative for the
respective accounts of the Underwriters against payment of the purchase price in
immediately available funds drawn to the order of the Bank at the offices of
__________________________ in New York, New York ________ at 10:00 a.m., New
York City time, on ____________, 199_ or at such other time not later than seven
full business days thereafter as the Representative and the Bank determine, such
time being herein referred to as the "Closing Date." The Notes to be so
delivered will be initially represented by one or more definitive Notes
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC") and will be made available for inspection by the Representative
at the office where delivery and payment for such Notes is to take place no
later than 1:00 p.m., New York City time on the Business Day prior to the
Closing Date.
4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected brokers and dealers) as set forth in the Prospectus.
5
5. Covenants of the Bank. The Bank covenants and agrees with the
Underwriters that:
(a) The Bank will file the Prospectus with the Commission pursuant
to Rule 424(b) of the Rules and Regulations within the time prescribed therein
and will provide evidence satisfactory to the Representative of such timely
filing. During any period (a "prospectus delivery period") that a prospectus
relating to the Notes is required to be declared under the Act, the Bank will
not file any amendments to the Registration Statement, or any amendments or
supplements to the Prospectus, unless it shall first have delivered copies of
such amendments or supplements to the Representative, or if the Representative
shall have reasonably objected thereto promptly after receipt thereof; the Bank
will promptly advise the Representative or its counsel (i) when notice is
received from the Commission that any post-effective amendment to the
Registration Statement has become or will become effective, (ii) of any request
by the Commission for any amendment or supplement to the Registration Statement
or the Prospectus or for any additional information and (iii) of any order or
communication suspending or preventing, or threatening to suspend or prevent,
the offer and sale of the Notes or of any proceedings or examinations that may
lead to such an order or communication, whether by or of the Commission or any
authority administering any state securities or "blue sky" law, as soon as the
Bank is advised thereof, and will use its reasonable efforts to prevent the
issuance of any such order or communication and to obtain as soon as possible
its lifting, if issued.
(b) If, at any time during the prospectus delivery period (without
regard to any market making prospectus required by the Underwriters pursuant to
the Act), any event occurs as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or if
it is necessary at any time to amend the Prospectus in order to comply with the
Act or the Rules and Regulations, the Bank promptly will prepare and file with
the Commission (subject to the Representative's prior review pursuant to
paragraph (a) of this Section 5), an amendment or supplement which will correct
such statement or omission or an amendment or supplement which will effect such
compliance.
9
(c) The Bank will furnish to the Representative copies of the
Registration Statement, each preliminary prospectus supplement relating to the
Notes, the Prospectus, and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the Representative may
reasonably request.
(d) The Bank will cooperate with the Representative in arranging for
the qualification of the Notes for sale and the determination of their
eligibility for investment under the laws of such jurisdictions, [or as
necessary to qualify for the Euroclear System or Cedel Bank, Societe anoyme,] as
the Representative designates and will continue such qualifications in effect so
long as required for the distribution of the Notes; provided, however, that
neither the Bank nor the Trust shall be obligated to qualify to do business in
any jurisdiction in which it is not currently so qualified or to take any action
which would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(e) For a period from the date of this Agreement until the
retirement of the Notes, the Bank, as Servicer, will furnish to the
Representative copies of each certificate and the annual statements of
compliance delivered to independent certified public accountants' reports
furnished to the Indenture Trustee or the Owner Trustee pursuant to the Sale and
Servicing Agreement, as soon as practicable after such statements and reports
are furnished to the Indenture Trustee or the Owner Trustee.
(f) So long as any of the Notes is outstanding, the Bank will
furnish to the Representative as soon as practicable, (A) all documents
distributed, or caused to be distributed, by the Bank to the Noteholders, (B)
all documents filed, or caused to be filed, by the Bank with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and any order of the Commission thereunder or pursuant to a "no-action"
letter from the staff of the Commission and (C) from time to time, such other
information in the possession of the Bank concerning the Trust and any other
information concerning the Bank filed with any governmental or regulatory
authority which is otherwise publicly available, as the Representative may
reasonably request.
(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.
10
(h) To the extent, if any, that the rating provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing documents or the taking of any other actions by
the Bank, the Bank shall furnish such documents and take any such other actions.
(i) For the period beginning on the date of the date hereof and
ending the Closing Date, unless waived by the Representative, neither the Bank
nor any trust originated, directly or indirectly, by the Bank will offer to sell
or sell notes (other than the Notes) collateralized by, or certificates (other
than the Certificates) evidencing an ownership interest in, 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 fees and disbursements of the counsel to the Indenture
Trustee and counsel to the Owner Trustee, (iii) the fees and disbursements of
the accountants, (iv) the fees of the rating agencies, (v) [fees of counsel to
the Underwriters, to the extent that such fees exceed $[___________]] and (vi)
blue sky expenses; provided, however, that the Underwriters may reimburse the
Bank for certain expenses incurred by the Bank as agreed to by the Underwriters
and the Bank.
7. Conditions to the Obligations of the Underwriters. The obligation
of the several Underwriters to purchase and pay for the Notes will be subject to
the accuracy of the representations and warranties on the part of the Bank
herein, on the date hereof and as of the Closing Date, to the accuracy of the
statements of officers of the Bank made pursuant to the provisions hereof, to
the performance by the Bank of its obligations hereunder and to the following
additional conditions precedent:
11
(a) On or prior to the date hereof Representative shall have
received a letter (a "Procedures Letter"), dated the date of this
Agreement of [___________________] verifying the accuracy of such
financial and statistical data contained in the Prospectus as the
Representative shall deem advisable. In addition, if any amendment
or supplement to the Prospectus made after the date hereof contains
financial or statistical data, the Representative shall have
received a letter dated the Closing Date confirming the 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[, The Chase
Manhattan Bank] or The Chase Manhattan Corporation which, in the
reasonable judgment of the Representative, materially impairs the
investment quality of the Notes or makes it impractical to market
the Notes; (ii) any suspension or material limitation of trading in
securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Bank[, The Chase Manhattan Bank] or
of The Chase Manhattan Corporation on any exchange or in the
over-the-counter market by such exchange or over-the-counter market
or by the Commission; (iii) any banking moratorium declared by
Federal or New York authorities; or (iv) any outbreak or material
escalation of major hostilities or any other substantial national or
international calamity or emergency if, in the reasonable judgment
of the Representative, the effect of any such outbreak, escalation,
calamity or emergency on the United States financial markets makes
it impracticable or inadvisable to proceed with completion of the
sale of and any payment for the Notes.
(d) The Representative shall have received opinions, dated the
Closing Date, of Simpson Thacher & Bartlett, special counsel to the
Bank and/or such other
12
counsel otherwise reasonably acceptable to the Representative when
taken together with respect to such matters as are customary for the
type of transaction contemplated by this Agreement, in form agreed
upon prior to the execution of this Agreement.
(e) The Representative shall have received an opinion or
opinions of Simpson Thacher & Bartlett, special counsel to the Bank,
dated the Closing Date and satisfactory in form and substance to the
Representative, with respect to certain matters relating to the
transfers of the Receivables from the Bank to the Trust, with
respect to a grant of a security interest in the Receivables to the
Indenture Trustee, and with respect to the perfection of the Trust's
and the Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from Orrick,
Herrington & Sutcliffe, counsel to the Underwriters, such opinion or
opinions, dated the Closing Date and satisfactory in form and
substance to the Representative, with respect to the validity of the
Notes, each Registration Statement, the Prospectus and other related
matters as the Representative may require, and the Bank shall have
furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(g) The Representative shall have received an opinion of
Simpson Thacher & Bartlett, special tax counsel to the Bank, dated
the Closing Date and reasonably satisfactory in form and substance
to the Representative, with respect to such matters some customary
for the type of transaction contemplated by this Agreement in the
form agreed upon prior to the execution of this Agreement.
(h) The Representative shall have received an opinion of
____________________, counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to the
Representative, substantially to the effect that:
(i) The Indenture Trustee is a
[___________________] and validly existing in good
standing under the laws of [____________________];
(ii) The Indenture Trustee has full corporate
trust power and authority to enter into and perform its
obligations under the Indenture,
13
the Sale and Servicing Agreement and the Administration
Agreement;
(iii) Each of the Indenture, the Sale and Servicing
Agreement and the Administration Agreement has been duly
authorized, executed and delivered by the Indenture Trustee
and constitutes a valid and legally binding agreement of the
Indenture Trustee, enforceable against the Indenture Trustee
in accordance with its terms, subject, as to enforcement of
remedies, (a) to applicable bankruptcy, insolvency,
reorganization, and other similar laws affecting the rights of
creditors generally, and (b) to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) Each of the Notes have been duly executed,
authenticated and delivered by the Indenture Trustee;
(v) No consent, approval or authorization of, or
registration, declaration or filing with, or giving of notice
to or the taking of any other act with respect to any court or
governmental authority, agency or body of the United States of
America or of any state governing the trust powers of the
Indenture Trustee is required under any existing laws or
regulation for the consummation on the part of the Indenture
Trustee of the Indenture, the Sale and Servicing Agreement and
the Administration Agreement or the performance by the
Indenture Trustee thereunder, except such as have been
obtained or the filing of Form T-1 under the Trust Indenture
Act;
(vi) The execution and delivery of the Sale and
Servicing Agreement and the Administration Agreement and the
performance by the Indenture Trustee of their respective terms
do not conflict with or result in a violation of (1) any laws
or regulations of the United States of America or of any state
governing the trust powers of the Indenture Trustee, (2) the
Articles of Incorporation or By-Laws of the Indenture Trustee
or (3) any material agreement, instrument, order, writ,
judgment or decree known to such counsel to which the
Indenture Trustee is a party or is subject; and
14
(vii) To the best of such counsel's knowledge and
belief, there is no action, suit or proceeding pending or
threatened against the Indenture Trustee (as trustee under the
Indenture or in its individual capacity) before or by any
governmental authority that if adversely decided, would
materially adversely affect the ability of the Indenture
Trustee to perform its obligations under the Indenture, the
Sale and Servicing Agreement or the Administration 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 Representative shall have received an opinion of
[____________________], counsel to the Owner Trustee, and such other
counsel reasonably satisfactory to the Representative and its
counsel, dated the Closing Date and satisfactory in form and
substance to the Representative, with respect to such matters as are
customary for the type of transaction contemplated by this
Agreement, in form agreed upon prior to the execution of this
Agreement.
(j) The Class A-1 Notes shall have been rated "[____]" by
Standard & Poor's, "[____]" by Moody's and "_________" by
[________________] and the Class A-2 Notes shall have been rated
"[____]" by Standard & Poor's, "[____]" by Moody's and "_________"
by [_____________];
(k) The Representative shall have received a certificate,
dated the Closing Date, of a Vice President or more senior officer
of the Bank in which such officer, 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 the Trust Agreement, and the conditions set
forth in Section 3.1(b) of the Sale and Servicing 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
15
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
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; and
(l) On the Closing Date, $[____________] aggregate amount of
Certificates shall have been issued and sold.
The Bank will furnish the Representative, or cause the
Representative to be furnished, with such number of conformed copies of such
opinions, certificates, letters and documents as the Representative reasonably
requests.
8. Indemnification. (a) The Bank will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of, or are based upon, any untrue statement or alleged untrue statement of any
material fact contained in any preliminary prospectus supplement, the
Registration Statement), the Prospectus (other than any market making prospectus
or any amendment or supplement thereto, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim; provided, however, that (i) the Bank shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of, or is based upon, an untrue statement or alleged untrue statement
or omission or alleged omission made in any preliminary prospectus supplement,
the Registration Statement or the Prospectus or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Bank by any Underwriter through the Representative expressly for use therein and
(ii) such indemnity with respect to any preliminary prospectus supplement shall
not inure to the benefit of the Underwriter (or any person controlling any of
the Underwriters) from whom the person asserting any such loss, claim, damage or
liability
16
purchased the Notes which are the subject thereof if such person did not receive
a copy of the Prospectus (or the Prospectus as supplemented) at or prior to the
confirmation of the sale of such Notes to such person in any case where such
delivery is required by the Act and the untrue statement or omission of a
material fact contained in such preliminary prospectus supplement was corrected
in the Prospectus (or the Prospectus as supplemented).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Bank, its directors, each of its officers or agents who signed the
Registration Statement, and each person, if any, who controls the Bank within
the meaning of Section 15 of the Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section 8, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in any preliminary
prospectus supplement, the Registration Statement or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Bank by any Underwriter through the Representative
expressly for use in such preliminary prospectus supplement, the Registration
Statement or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have hereunder or otherwise 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.
17
(d) The obligations of the Bank under this Section 8 shall be in
addition to any liability which the Bank may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and each Underwriter's obligations
under this Section 8 shall be in addition to any liability which such
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Bank and to each person, if any,
who controls the Bank within the meaning of Section 15 of the Act.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 is for any reason held to be unavailable other than in accordance with
its terms, the Bank and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Bank or the Underwriters, as incurred,
in such proportions so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount and commissions
bear to the initial public offering price appearing thereon and the Bank is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act shall
have the same rights to contribution as such Underwriter, and each director of
the Bank, each officer or agent of the Bank who signed the Registration
Statement, and each person, if any, who controls the Bank within the meaning of
Section 15 of the Act shall have the same rights to contribution as the Bank.
10. Default of Underwriters. If any Underwriter defaults in its
obligations to purchase Notes hereunder and the aggregate principal amount of
the Notes that such defaulting Underwriter agreed but failed to purchase does
not exceed 10% of the total principal amount of Notes, the Representative may
make arrangements satisfactory to the Bank for the purchase of such Notes by
other persons, including the non-defaulting Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Notes that such defaulting Underwriter agreed but failed to
purchase. If any Underwriter so defaults and the aggregate principal amount of
the Notes with respect to which such default or defaults occur exceeds 10% of
the total principal amount of the Notes and arrangements satisfactory to the
Representative and the Bank for the purchase of such Notes by other persons are
not made within 36 hours after such default,
18
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Bank, except as provided in Section 11.
Nothing herein will relieve a defaulting Underwriter from liability for its
default.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Bank or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriters, the Bank or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If for any reason the purchase of the Notes by the
Underwriters is not consummated, the Bank shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 6 and the respective
obligations of the Bank and the Underwriters pursuant to Section 5, 6, 8 and 9
shall remain in effect. If the purchase of the Notes by the Underwriters is not
consummated for any reason other than solely because of the occurrence of any
event specified in clauses (ii), (iii) or (iv) of Section 7(c), the Bank will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by it in connection with the
offering of the Notes.
12. Notices. All communications hereunder will be in writing and, if
sent to the Representative or the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representative at Chase Securities Inc., 270
Park Avenue, 7th Floor, New York, New York 10017, Attention: Asset Backed
Finance Division, or, if sent to the Bank, will be mailed, delivered or
telegraphed, and confirmed to it at [__________________________], Attention:
[___________________].
13. Successors. This Agreement will inure to the benefit of, and be
binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes from any
Un-
19
derwriter shall be deemed to be a successor by reason merely of such purchase.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. No Bankruptcy Petition. Each Underwriter covenants and agrees
that, prior to the date which is one year and one day after the payment in full
of all securities issued by the Trust, it will not institute against, or join
any other person in instituting against, the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
20
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to us the enclosed
duplicate hereof, whereupon it will become a binding agreement among the Bank
and the several Underwriters in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA, N.A.
By________________________________
Name:
Title:
The foregoing Note Underwriting Agreement is hereby confirmed and accepted as of
the date first written above:
CHASE SECURITIES INC.
on behalf of itself and
as Representative
of the several Underwriters,
named in Schedule I
By_________________________________
Name:
Title:
21
SCHEDULE I
Principal Amount of Principal Amount of
Underwriter Class A-1 Notes Class A-2 Notes
----------- --------------- ---------------
$ $
---------------- ----------------
$ $
================ ================
22
EXHIBIT A
THIS TERM SHEET CONTAINS STRUCTURAL AND COLLATERAL INFORMATION WITH
RESPECT TO THE NOTES AND THE CERTIFICATES; HOWEVER, THIS TERM SHEET DOES NOT
CONTAIN COMPLETE INFORMATION WITH RESPECT TO THE OFFERING OF THE NOTES AND THE
CERTIFICATES. THE INFORMATION HEREIN IS PRELIMINARY AND WILL BE SUPERSEDED BY
THE INFORMATION CONTAINED IN THE PROSPECTUS SUPPLEMENT AND THE BASE PROSPECTUS.
ADDITIONAL INFORMATION WILL BE CONTAINED IN THE PROSPECTUS SUPPLEMENT AND THE
BASE PROSPECTUS. PURCHASERS ARE URGED TO READ BOTH THE PROSPECTUS SUPPLEMENT AND
THE BASE PROSPECTUS.
THIS TERM SHEET SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION
OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE
IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. SALES
OF THE NOTES AND THE CERTIFICATES MAY NOT BE CONSUMMATED UNLESS THE PURCHASER
HAS RECEIVED BOTH THE PROSPECTUS SUPPLEMENT AND THE BASE PROSPECTUS.
23