OH&S DRAFT
9/17/97
CHASE MANHATTAN RV OWNER TRUST 1997-A
ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
and
THE CHASE MANHATTAN BANK,
Sellers
THE CIT GROUP/SALES FINANCING, INC.,
Servicer
NOTE UNDERWRITING AGREEMENT
September __, 1997
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, National
Association ("Chase USA"), a national banking association and The Chase
Manhattan Bank ("Chase"), a New York banking corporation (each, a "Bank", and
together referred to herein as the "Banks"), propose to form Chase Manhattan RV
Owner Trust 1997-A (the "Trust") to sell $59,500,000 aggregate principal amount
of Class A-1 _____% Asset Backed Notes (the "Class A-1 Notes"), $119,000,000
aggregate principal amount of Class A-2 _____% Asset Backed Notes (the "Class
A-2 Notes"), $113,000,000 aggregate principal amount of Class A-3 _____%
Asset Backed Notes (the "Class A-3 Notes"), $73,000,000 aggregate principal
amount of Class A-4 _____% Asset Backed Notes (the "Class A-4 Notes"),
$132,000,000 aggregate principal amount of Class A-5 _____% Asset Backed
Notes (the "Class A-5 Notes"), $88,000,000 aggregate principal amount of
Class A-6 _____% Asset Backed Notes (the "Class A-6 Notes"), $57,000,000
aggregate principal amount of Class A-7 _____% Asset Backed Notes (the "Class
A-7 Notes"), $85,000,000 aggregate principal amount of Class A-8 _____%
Asset Backed Notes (the "Class A-8 Notes"), $61,000,000 aggregate principal
amount of Class A-9 _____% Asset Backed Notes (the "Class A-9 Notes") and
$65,000,000 aggregate principal
amount of Class A-10 _____% Asset Backed Notes (the "Class A-10 Notes" and,
together with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes, the Class A-5 Notes, the Class A-6 Notes, the Class A-7 Notes,
the Class A-8 Notes, Class A-9 Notes and the Class A-10 Notes, the "Notes").
The assets of the Trust will include, among other things, a
pool of retail installment sales contracts and purchase money notes and other
notes (the "Receivables") secured by new and used recreational vehicles (the
"Financed Vehicles") and certain monies received or due thereunder after the
Cutoff Date (as hereinafter defined), such Receivables to be transferred to the
Trust by the Banks, and serviced by The CIT Group/Sales Financing, Inc.
("CITSF") and in its capacity as Servicer, the "Servicer"), or by a successor
Servicer. The Pool Balance of the Receivables as of the close of business on
September 1, 1997 (the "Cutoff Date") was equal to $897,395,285.54 (the
"Cutoff Date Pool Balance"). The Notes will be issued pursuant to the Indenture
to be dated as of September 1, 1997 (as amended and supplemented from time to
time, the "Indenture"), between the Trust and Norwest Bank Minnesota, National
Association, as indenture trustee (the "Indenture Trustee").
Simultaneously with the issuance and sale of the Notes as
contemplated herein, the Trust will issue $44,895,285.54 aggregate principal
amount of _____% Asset Backed Certificates (the "Certificates") pursuant to the
Amended and Restated Trust Agreement to be dated as of September 1, 1997 (as
amended and supplemented from time to time, the "Trust Agreement"), among the
Banks and Wilmington Trust Company, as owner trustee (the "Owner Trustee"), each
representing a fractional undivided ownership interest in the Trust, which will
be sold pursuant to an underwriting agreement dated the date hereof (the
"Certificate Underwriting Agreement" and, together with this Agreement, the
"Underwriting Agreements") among the Banks and Chase Securities Inc. 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 September 1, 1997 (as amended and supplemented from time to time,
the "Sale and Servicing Agreement"), among the Trust, and the Banks, as Sellers,
and the Servicer.
This is to confirm the agreement concerning the purchase of
the Notes from the Banks 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 Banks. Each Bank
represents and warrants to, and agrees with, the Underwriters, that:
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(a) A registration statement on Form S-3 (No. 333-32263),
including a form of prospectus, relating to the Securities 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"). The Banks may have
filed one or more amendments thereto, including the related preliminary
prospectus, each of which has previously been furnished to you. The Banks have
included in the registration statement, as amended on the date such registration
statement became effective, all information (other than information permitted to
be omitted from a registration statement when it becomes effective pursuant to
Rule 430A ("Rule 430A Information") required by the Act and the Rules and
Regulations to be included in the final prospectus with respect to the
Securities and the offering thereof. Such registration statement, as amended on
the date that such registration statement or the most recent post-effective
amendment thereto, if any, became or becomes effective under the Act, including
the exhibits thereto and the 430A Information, 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 such 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 have been satisfied with respect to the
Registration Statement.
(b) The Banks propose to file with the Commission pursuant to
Rules 430A and 424(b)(1) or 424(b)(4) under the Rules and Regulations a final
prospectus relating to the sale of the Securities. The prospectus in the form
filed with the Commission pursuant to Rules 430A and 424(b)(1) or 424(b)(4)
under the Rules and Regulations is hereinafter referred to as the "Prospectus."
As filed, the Prospectus shall include all Rule 430A Information, together with
all other such required information, with respect to the Securities and the
offering thereof and, 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 Banks have advised the Representative, prior to such
time, will be included or made therein. "Preliminary Prospectus" means each
prospectus included in the Registration Statement, or amendments thereof, before
it became effective under the Act, any prospectus filed with the Commission by
the Banks pursuant to Rule 424(a) and the prospectus included in the
Registration Statement on the date the Registration Statement became effective.
(c) The Registration Statement, at the time it became
effective, did, and the Prospectus, at the time the Prospectus is
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first filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein), will, comply in all material respects with the applicable requirements
of the Act and the Trust Indenture Act of 1939 and the Rules and Regulations. At
the time the Registration Statement became effective, it did not include any
untrue statement of a material fact or, did not omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and, on the date of the filing of the Prospectus pursuant to Rules
430A and 424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, 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 such Bank makes no representation or
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 either 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) In the case of Chase USA, such Bank is a national banking
association organized under the laws of the United States, and in the case of
Chase, such Bank is a New York banking corporation, in each case, 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 and sell the Receivables being transferred by such
Bank to the Trust.
(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 Banks to the Underwriters
pursuant to this Agreement and the Sale and Servicing Agreement, the Notes will
be duly issued and will constitute legal, valid and binding obligations of the
Trust enforceable against the Trust in accordance with their terms, except to
the extent that the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, conservatorship, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights as such laws would
apply in the event of the insolvency, liquidation or reorganization or other
similar occurrence with respect to either Bank or the Trust or in the event of
any moratorium or similar occurrence affecting either Bank or the Trust and to
general principles of equity.
(f) The direction by such Bank to the Owner Trustee to
execute and authenticate the Certificates has been duly authorized by such 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 Banks to Chase Securities Inc. pursuant to the Certificate
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Underwriting Agreement and the Sale and Servicing Agreement, the Certificates
will be duly issued and entitled to the benefits and security afforded by the
Trust Agreement.
(g) The execution, delivery and performance by such Bank of
this Agreement, the Certificate Underwriting Agreement, and the Basic Documents
to which such Bank is a party, and the consummation by such Bank of the
transactions provided for herein and therein have been, or will have been, duly
authorized by such Bank by all necessary action on the part of such Bank; and
neither the execution and delivery by such Bank of such instruments, nor the
performance by such Bank of the transactions herein or therein contemplated, nor
the compliance by such 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 charter or by-laws of such Bank, or (ii) conflict with any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on such Bank or the properties of such Bank, or (iii) conflict with any
of the material provisions of any material indenture, mortgage, contract or
other instrument to which such Bank is a party or by which such Bank 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 such 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 such Bank, enforceable against such 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 such Bank or in the event of any moratorium or similar occurrence
affecting such 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) required in connection
with the execution, delivery and performance of this Agreement, the Certificate
Underwriting Agreement and the Basic Documents to which such Bank is a party,
have been or will be taken or obtained on or prior to the Closing Date.
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(j) As of the Closing Date, the representations and
warranties of such Bank in the Trust Agreement will be true and correct.
(k) This Agreement and the Certificate Underwriting Agreement
have been duly executed and delivered by such 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, Chase USA agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from Chase USA, (a) at a purchase price of _________% of the principal
amount thereof, the principal amount of the Class A-1 Notes set forth opposite
the name of such Underwriter in Schedule I hereto, (b) at a purchase price of
_________% of the principal amount thereof, the principal amount of the Class
A-2 Notes set forth opposite the name of such Underwriter in Schedule I hereto,
(c) at a purchase price of _________% of the principal amount thereof, the
principal amount of the Class A-3 Notes set forth opposite the name of such
Underwriter in Schedule I hereto, (d) at a purchase price of _________% of the
principal amount thereof, the principal amount of the Class A-4 Notes set forth
opposite the name of such Underwriter in Schedule I hereto, (e) at a purchase
price of _________% of the principal amount thereof, the principal amount of the
Class A-5 Notes set forth opposite the name of such Underwriter in Schedule I
hereto, (f) at a purchase price of _________% of the principal amount thereof,
the principal amount of the Class A-6 Notes set forth opposite the name of such
Underwriter in Schedule I hereto, (g) at a purchase price of _________% of the
principal amount thereof, the principal amount of the Class A-7 Notes set forth
opposite the name of such Underwriter in Schedule I hereto, (h) at a purchase
price of _________% of the principal amount thereof, the principal amount of the
Class A-8 Notes set forth opposite the name of such Underwriter in Schedule I
hereto, (i) at a purchase price of _________% of the principal amount thereof,
the principal amount of the Class A-9 Notes set forth opposite the name of such
Underwriter in Schedule I hereto and (j) at a purchase price of _________% of
the principal amount thereof, the principal amount of the Class A-10 Notes set
forth opposite the name of such Underwriter in Schedule I hereto, plus, in each
case, accrued interest at the applicable Interest Rate from September 1, 1997 to
but excluding the Closing Date.
On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
Chase agrees to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from Chase, (a) at a purchase price of _________%
of the principal amount thereof, the principal amount of the Class A-1 Notes set
forth opposite the name of such Underwriter in Schedule II hereto, (b) at a
purchase price of _________% of the principal amount thereof, the principal
amount
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of the Class A-2 Notes set forth opposite the name of such Underwriter in
Schedule II hereto, (c) at a purchase price of _________% of the principal
amount thereof, the principal amount of the Class A-3 Notes set forth opposite
the name of such Underwriter in Schedule II hereto, (d) at a purchase price of
_________% of the principal amount thereof, the principal amount of the Class
A-4 Notes set forth opposite the name of such Underwriter in Schedule II hereto,
(e) at a purchase price of _________% of the principal amount thereof, the
principal amount of the Class A-5 Notes set forth opposite the name of such
Underwriter in Schedule II hereto, (f) at a purchase price of _________% of the
principal amount thereof, the principal amount of the Class A-6 Notes set forth
opposite the name of such Underwriter in Schedule II hereto, (g) at a purchase
price of _________% of the principal amount thereof, the principal amount of the
Class A-7 Notes set forth opposite the name of such Underwriter in Schedule II
hereto, (h) at a purchase price of _________% of the principal amount thereof,
the principal amount of the Class A-8 Notes set forth opposite the name of such
Underwriter in Schedule II hereto, (i) at a purchase price of _________% of the
principal amount thereof, the principal amount of the Class A-9 Notes set forth
opposite the name of such Underwriter in Schedule II hereto and (j) at a
purchase price of _________% of the principal amount thereof, the principal
amount of the Class A-10 Notes set forth opposite the name of such underwriter
in Schedule II hereto, plus, in each case, accrued interest at the applicable
Interest Rate from September 1, 1997 to but excluding the Closing Date.
Each Bank will deliver the Notes being sold by it hereunder 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 ____________ on behalf of the Banks at the offices of Orrick, Herrington &
Sutcliffe LLP in New York, New York at 10:00 a.m., New York City time, on
September __, 1997 or at such other time not later than seven full business days
thereafter as the Representative and the Banks determine, such time being herein
referred to as the "Closing Date." The Notes of each class to be so delivered
will be initially represented by one or more definitive Notes registered in the
name of Cede & Co., the nominee of The Depository Trust Company ("DTC") and will
be made available for inspection by the Representative at the office where
delivery and payment for such Notes is to take place no later than 1:00 p.m.,
New York City time, on the Business Day prior to the Closing Date.
4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected brokers and dealers) as set forth in the Prospectus.
5. Covenants of the Banks. Each Bank covenants and agrees
with the Underwriters that:
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(a) Such Bank will file the Prospectus with the Commission
pursuant to Rule 424(b)(1) or 424(b)(4), as applicable, of the Rules and
Regulations within the time prescribed therein and will provide evidence
satisfactory to the Representative of such timely filing. During any period that
a prospectus relating to the Notes is required to be delivered to purchasers of
the Notes by the Underwriters and dealers participating in the initial offering
and sale of the Notes on the Closing Date under the Act (without regard to any
market making prospectus required to be delivered by any Underwriter under the
Act) (a "prospectus delivery period"), such Bank will not file any amendments to
the Registration Statement, or any amendments or supplements to the Prospectus,
unless it shall first have delivered copies of such amendments or supplements to
the Representative, and if the Representative shall have reasonably objected
thereto promptly after receipt thereof; such 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 such Bank is advised thereof,
and such Bank 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, such Bank promptly will prepare and file with
the Commission (subject to the Representative's prior review pursuant to
paragraph (a) of this Section 5), an amendment or supplement which will correct
such statement or omission or an amendment or supplement which will effect such
compliance.
(c) Such Bank will furnish to the Representative copies of
the Registration Statement, as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents and exhibits
filed therewith and each Preliminary Prospectus, the Prospectus and any amended
or supplemented Prospectus, in each case as soon as available and in such
quantities as the Representative may reasonably request.
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(d) Such 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 anonyme, as
the Representative designates and will cooperate in continuing such
qualifications in effect so long as required for the distribution of the Notes;
provided, however, that neither any such 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) [Reserved]
(f) So long as any of the Notes is outstanding, such Bank
will furnish to the Representative as soon as practicable, (A) all documents
distributed, or caused to be distributed, by such Bank to the Noteholders, (B)
all documents filed, or caused to be filed, by such 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 such Bank concerning
the Trust and any other information concerning such 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, such Bank shall cause its
computer records relating to the Receivables to be marked to show the Trust's
absolute ownership of the Receivables transferred by such Bank to the Trust, and
from and after the Closing Date neither such Bank nor the Servicer shall take
any action inconsistent with the Trust's ownership of such Receivables and the
security interest of the Indenture Trustee therein, other than as permitted by
the Sale and Servicing Agreement.
(h) To the extent, if any, that the rating provided with
respect to the Notes by Moody's, Standard & Poor's and/or Duff & Phelps is
conditional upon the furnishing of documents or the taking of any other actions
by such Bank agreed upon on or prior to the Closing Date, such Bank shall
furnish such documents and take any such other actions.
(i) For the period beginning on the date hereof and ending on
the Closing Date, unless waived by the Representative, neither such Bank nor any
trust originated, directly or indirectly, by such 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 recreational vehicle installment sale contracts or purchase money
loans.
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6. Payment of Expenses. The Banks will pay all expenses
incident to the performance of their respective 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 Price Waterhouse LLP and Arthur Andersen, (iv) the
fees of the Rating Agencies and (v) blue sky expenses; provided, however, that
the Underwriters may reimburse the Banks for certain expenses incurred by the
Banks as agreed to by the Underwriters and the Banks.
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
Banks herein on the date hereof and as of the Closing Date, to the accuracy of
the statements of officers of the Banks made pursuant to the provisions hereof,
to the performance by the Banks of their respective obligations hereunder and to
the following additional conditions precedent:
(a) On or prior to the date hereof, the
Representative shall have received a letter (a "Procedures
Letter"), dated the date of this Agreement of each of Price
Waterhouse LLP and Arthur Andersen verifying the accuracy of
such financial and statistical data contained in the
Prospectus as the Representative shall deem reasonably
advisable. In addition, if any amendment or supplement to the
Prospectus made after the date hereof contains financial or
statistical data, the Representative shall have received a
letter dated the Closing Date confirming the Procedures Letter
and providing additional comfort on such new data.
(b) The Prospectus 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 any of
the Banks, The Chase Manhattan Corporation, CITSF or The CIT
Group Holdings, Inc. which, in the reasonable judgment of the
Representative, materially impairs the investment
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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 any of the Banks or
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 and reasonably satisfactory, when taken
together, in form and substance to the Representative, of
Simpson Thacher & Bartlett, special counsel to the Banks,
Richards, Layton & Finger, special counsel to the Trust, and
such other counsel otherwise reasonably acceptable to the
Representative, with respect to such matters as are customary
for the type of transaction contemplated by this Agreement.
(e) The Representative shall have received an
opinion or opinions of Simpson Thacher & Bartlett, special
counsel to the Banks, dated the Closing Date and satisfactory
in form and substance to the Representative, with respect to
certain matters relating to the transfers from each Bank to
the Trust of its Receivables, with respect to the perfection
of the Trust's interest in the Receivables transferred by
hase and with respect to the grant of a security interest in
the Receivables to the Indenture Trustee, and an opinion of
Richards, Layton & Finger, special counsel to the Trust, with
respect to the perfection of the Trust's interest in the
Receivables transferred by Chase USA and the Indenture
Trustee's interests in the Receivables.
(f) The Representative shall have received from
Schulte Roth & Zabel, counsel to the Servicer, such opinion or
opinions, dated the Closing Date and satisfactory in form and
substance to the Representative, with respect to corporate and
securities law matters.
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(g) The Representative shall have received from
Orrick, Herrington & Sutcliffe LLP, counsel to the
Underwriters, such opinion or opinions, dated the Closing Date
and satisfactory in form and substance to the Representative,
with respect to the validity of the Notes, the Registration
Statement, the Prospectus (including certain matters relating
to the transfer to the Trust of security interests in
California Financed Vehicles) and other related matters as the
Representative may require, and the Banks shall have furnished
to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(h) The Representative shall have received an
opinion of Simpson Thacher & Bartlett, special U.S. tax
counsel to the Banks, dated the Closing Date and reasonably
satisfactory in form and substance to the Representative,
with respect to such matters as are customary for the type of
transaction contemplated by this Agreement.
(i) The Representative shall have received form
Crowe & Dunlevy, P.C., special Oklahoma tax counsel to the
Banks, 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 covered by this
Agreement.
(j) The Representative shall have received an
opinion of Dorsey & Whitney LLP, counsel to the Indenture
Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative, 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 Representative shall have received an
opinion of Richards, Layton & Finger, special counsel to the
Owner Trustee, and such other counsel reasonably satisfactory
to the Representative and its counsel, dated the Closing Date
and satisfactory in form and substance to the Representative,
with respect to such matters as are customary for the type of
transaction contemplated by this Agreement;
(j) The Class A-1 Notes shall have been rated "A-1+"
by Standard & Poor's, P-1 by Moody's and "D-1" by Duff &
Phelps. The Notes other than the Class A-1 Notes shall have
been rated "A" by Standard & Poor's,
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A3 by Moody's and "A" by Duff & Phelps. The Certificates
shall have been rated "A" by Standard & Poor's, A3 by
Moody's or "A+" by Duff & Phelps;
(k) The Representative shall have received a
certificate, dated the Closing Date, of an attorney-in-fact, a
Vice President or more senior officer of each 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 such Bank in this Agreement
are true and correct in all material respects on and as of the
Closing Date, (ii) such 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 such Bank, as Seller, 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 and (v) 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;
(l) On the Closing Date, $44,895,285.54 aggregate
amount of Certificates shall have been issued and sold
pursuant to the Certificate Underwriting Agreement; and
(m) CITSF, the Banks and the Representative on
behalf of the Note Underwriters shall have entered into an
Indemnification Agreement (the "Indemnification Agreement")
satisfactory in form and substance to the parties thereto.
Each 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 Banks jointly and severally 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 the Preliminary
Prospectus, the Registration Statement, the Prospectus (other than any market
making
13
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 Banks 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 (A) in the Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to either Bank by any Underwriter through the Representative expressly
for use therein or (B) in the CITSF Information (as defined in the
Indemnification Agreement) contained in the Preliminary Prospectus, the
Registration Statement or the Prospectus and (ii) such indemnity with respect to
the Preliminary Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling any such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Notes which are the subject
thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) at or prior to the confirmation of the sale of such
Notes to such person in any case where such delivery is required by the Act and
the untrue statement or omission of a material fact contained in the Preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as supplemented).
(b) Each Underwriter severally agrees to indemnify and hold
harmless each Bank, the directors, the officers or agents of each Bank who
signed the Registration Statement, and each person, if any, who controls each
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 the
Preliminary Prospectus, the Registration Statement or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to either Bank by such Underwriter through the
Representative expressly for use in the Preliminary Prospectus, 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
14
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 each Bank under this Section 8 shall
be in addition to any liability which such 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 each Bank and to each person, if
any, who controls each 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 Banks 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 Banks 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 Banks are
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
each Bank, each officer or agent of each Bank who signed the Registration
Statement, and each person, if any, who controls each Bank within the meaning of
Section 15 of the Act shall have the same rights to contribution as such Bank.
15
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 Banks 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 Banks for the purchase of such Notes by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Banks,
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 Banks or their respective 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 Banks 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, each Bank shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
6 and the respective obligations of each Bank and the Underwriters pursuant to
Section 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 Banks will reimburse each Underwriter for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by it in
connection with the offering of the Notes.
12. Notices. All communications hereunder will be in writing
and, if sent to the Representative or the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the Representative at Chase Securities
Inc., 270 Park Avenue, 7th Floor, New York, New York 10017, Attention: Asset
Backed Finance Division, or, if sent to the Banks, will be mailed, delivered, or
telegraphed and confirmed to (i) Chase Manhattan Bank USA, National Association,
802 Delaware Avenue, Wilmington, Delaware 19801, Attention:_____________________
and (ii) The Chase
16
Manhattan Bank, 270 Park Avenue, New York, New York 10017, 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
Underwriter shall be deemed to be a successor by reason merely of such purchase.
14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
15. No Bankruptcy Petition. Each Underwriter covenants and
agrees that, prior to the date which is one year and one day after the payment
in full of all securities issued by the Trust, it will not institute against, or
join any other person in instituting against, the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
17
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 Banks
and the several Underwriters in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION
By
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
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:
SCHEDULE I
Principal Amount of Principal Amount of Principal Amount of Principal Amount of Principal Amount of
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes Class A-5 Notes
- ----------- ------------------- ------------------- ------------------- ------------------- -------------------
-------- -------- -------- -------- --------
Total
Principal Amount of Principal Amount of Principal Amount of Principal Amount of Principal Amount of
Underwriter Class A-6 Notes Class A-7 Notes Class A-8 Notes Class A-9 Notes Class A-10 Notes
- ----------- ------------------- ------------------- ------------------- ------------------- -------------------
-------- -------- -------- -------- --------
Total
19
SCHEDULE II
Principal Amount of Principal Amount of Principal Amount of Principal Amount of Principal Amount of
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes Class A-5 Notes
- ----------- ------------------- ------------------- ------------------- ------------------- -------------------
-------- -------- -------- -------- --------
Total
Principal Amount of Principal Amount of Principal Amount of Principal Amount of Principal Amount of
Underwriter Class A-6 Notes Class A-7 Notes Class A-8 Notes Class A-9 Notes Class A-10 Notes
- ----------- ------------------- ------------------- ------------------- ------------------- -------------------
-------- -------- -------- -------- --------
Total
20