OH&S DRAFT
9/17/97
CHASE MANHATTAN RV OWNER TRUST 1997-A
ASSET BACKED CERTIFICATES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
and
THE CHASE MANHATTAN BANK,
Sellers
THE CIT GROUP/SALES FINANCING, INC.,
Servicer
CERTIFICATE UNDERWRITING AGREEMENT
September __, 1997
Chase Securities Inc.
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 the "Banks"), propose to form Chase Manhattan RV Owner Trust 1997-A
(the "Trust") to sell $44,895,285.54 aggregate principal amount of ____% Asset
Backed Certificates (the "Certificates"), each representing a fractional
undivided interest in the Trust.
The assets of the Trust will include, among other things, a
pool of 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 on and after
the Cutoff Date (as hereinafter defined), such Receivables to be transferred to
the Trust 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 Certificates will be
issued pursuant to the 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").
Simultaneously with the issuance and sale of the Certificates
as contemplated herein, the Trust will issue $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"), pursuant to the Indenture to be dated as of
September 1, 1997 (as amended and supplemented from time to time, the
"Indenture"), among the Banks and Norwest Bank Minnesota, National Association,
as indenture trustee (the "Indenture Trustee"), which will be sold pursuant to
an underwriting agreement dated the date hereof (the "Note Underwriting
Agreement"; together with this Agreement, the "Underwriting Agreements") among
the Banks and the underwriters named therein (the "Note Underwriters"). The
Notes and the Certificates are sometimes referred to collectively herein as the
"Securities".
Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the Sale and Servicing Agreement to
be dated as of September 1, 1997 (as amended and supplemented from time to time,
the "Sale and Servicing Agreement"), among the Trust, the Banks, as Sellers, and
the Servicer.
This is to confirm the agreement concerning the
purchase of the Certificates from the Banks by Chase Securities
Inc. (the "Underwriter").
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2. Representations and Warranties of the Banks. Each Bank
represents and warrants to, and agrees with, the Underwriter, that:
(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 such 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 430 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 Underwriter shall have
agreed to a modification, the Prospectus shall be in all substantive respects in
the form furnished to the Underwriter prior to the execution of this Agreement
or, to the extent not completed at such time, shall contain only such material
changes as the Banks have advised the Underwriter, 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
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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 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 the Underwriter through the Underwriter 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 Note
Underwriters pursuant to the Note Underwriting Agreement and the Sale and
Servicing Agreement, the Notes will be duly issued and will constitute legal,
valid and binding obligations of the Trust enforceable against the Trust in
accordance with their terms, except to the extent that the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
conservatorship, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights as such laws would apply in the event of the
insolvency, liquidation or reorganization or other similar occurrence with
respect to 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;
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(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 the Underwriter pursuant to this Agreement and the
Sale and Servicing Agreement, the Certificates will be duly issued and entitled
to the benefits and security afforded by the Trust Agreement;
(g) The execution, delivery and performance by such Bank of
this Agreement, the Note 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, such
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
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various jurisdictions) if so required in connection with the execution, delivery
and performance of this Agreement, the Note Underwriting Agreement and the Basic
Documents to which such Bank is a party has been or will be taken or obtained on
or prior to the Closing Date;
(j) As of the Closing Date, the representations and
warranties of such Bank, in the Trust Agreement will be true and correct;
(k) This Agreement and the Note Underwriting Agreement have
been duly executed and delivered by such Bank;
3. Purchase, Sale, Payment and Delivery of the Certificates.
On the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, Chase USA agree to
sell to the Underwriter, and the Underwriter agrees, to purchase from Chase USA,
at a purchase price of ________% of the face amount thereof, $44,895,285.54
principal amount of the Certificates plus accrued interest at the Certificate
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 the Underwriter, and the Underwriter agrees, to purchase
from Chase, at a purchase price of ________% of the face amount thereof,
$44,895,285.54 principal amount of the Certificates plus accrued interest at the
Certificate Rate from September 1, 1997 to but excluding the Closing Date.
Each Bank will deliver the Certificates being sold by it
hereunder to the Underwriter 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 1, 1997 or at such other
time not later than seven full business days thereafter as the Underwriter and
the Banks determine, such time being herein referred to as the "Closing Date."
The Certificates to be so delivered will be initially represented by one or more
definitive Certificates registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"), except for a Certificate registered in the
name of Chase Securities Inc. in an amount of $___.__, and will be made
available for inspection by the Underwriter at the office where delivery and
payment for such Certificates is to take place no later than 1:00 p.m., New York
City time, on the Business Day prior to the Closing Date.
4. Offering by the Underwriter. It is understood that the
Underwriter proposes to offer the Certificates for sale to the public (which may
include selected brokers and dealers) as set forth in the Prospectus.
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5. Covenants of the Banks. Each Bank covenants and agrees
with the Underwriter that:
(a) Such Bank will file the Prospectus with the Commission
pursuant to Rule 424(b)(1) or 424(b)(4) of the Rules and Regulations within the
time prescribed therein and will provide evidence satisfactory to the
Underwriter of such timely filing. During any period that a prospectus relating
to the Certificates is required under the Act to be delivered to purchasers of
the Certificates by the underwriters and dealers participating in the initial
offering and sale of the Certificates on the Closing Date under the Act (without
regard to any market making prospectus required to be delivered by the
Underwriter pursuant to the Act) (a "prospectus delivery period"), 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 Underwriter, and, if the Underwriter shall
have reasonably objected thereto promptly after receipt thereof; such Bank will
promptly advise the Underwriter or its counsel (i) when notice is received from
the Commission that any post-effective amendment to the Registration Statement
has become or will become effective, (ii) of any request by the Commission for
any amendment or supplement to the Registration Statement or the Prospectus or
for any additional information and (iii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer and
sale of the Certificates or of any proceedings or examinations that may lead to
such an order or communication, whether by or of the Commission or any authority
administering any state securities or "blue sky" law, as soon as 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 Underwriter's prior review pursuant to paragraph (a)
of this Section 5), an amendment or supplement which will correct such statement
or omission or an amendment or supplement which will effect such compliance.
(c) Such Bank will furnish to the Underwriter 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
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supplemented Prospectus; in each case as soon as available and in such
quantities as the Underwriter may reasonably request.
(d) Such Bank will cooperate with the Underwriter in
arranging for the qualification of the Certificates for sale and the
determination of their eligibility for investment under the laws of such
jurisdictions as the Underwriter designates and will cooperate in continuing
such qualifications in effect so long as required for the distribution of the
Certificates; provided, however, that neither 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 Certificates is outstanding, such
Bank will furnish to the Underwriter as soon as practicable, (A) all documents
distributed, or caused to be distributed, by such Bank to the
Certificateholders, (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 Underwriter 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 such 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 Certificates 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 Underwriter, 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,
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receivables generated pursuant to recreational vehicle installment sale
contracts or purchase money loans.
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 Underwriter may reimburse the Banks for certain expenses incurred by the
Banks as agreed to by the Underwriter and the Banks.
7. Conditions to the Obligations of the Underwriter. The
obligation of the Underwriter to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of the
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 Underwriter
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
Underwriter shall deem reasonably advisable. In addition, if
any amendment or supplement to the Prospectus made after the
date hereof contains financial or statistical data, the
Underwriter shall have received a letter dated the Closing
Date confirming each Procedures Letter and providing
additional comfort on such new data;
(b) The Prospectus 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
Underwriter,
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materially impairs the investment quality of the
Certificates or makes it impractical to market the
Certificates; (ii) any suspension or material limitation of
trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading
on such exchange, or any suspension of trading of any
securities of 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 Underwriter, the effect of any such
outbreak, escalation, calamity or emergency on the United
States financial markets makes it impracticable or inadvisable
to proceed with completion of the sale of and any payment for
the Certificates;
(d) The Underwriter shall have received opinions,
dated the Closing Date and reasonably satisfactory, when taken
together, in form and substance to the Underwriter, of 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 Underwriter,
with respect to such matters as are customary for the type of
transaction contemplated by this Agreement;
(e) The Underwriter shall have received an opinion
or opinions of Simpson Thacher & Bartlett, special counsel to
the Banks, dated the Closing Date and satisfactory in form and
substance to the Underwriter, 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 Chase 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 Underwriter 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 Underwriter, with respect to corporate and
securities law matters.
(g) The Underwriter shall have received from Orrick,
Herrington & Sutcliffe LLP, counsel to the
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Underwriter, such opinion or opinions, dated the Closing
Date and satisfactory in form and substance to the
Underwriter, with respect to the validity of the
Certificates, the Registration Statement, the Prospectus
(including certain matters relating to the transfer to the
Trust of security interests in California Financed Vehicles)
and other related matters as the Underwriter 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 Underwriter 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 Underwriter, with respect to such
matters as are customary for the type of transaction
contemplated by this Agreement;
(i) The Underwriter 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 Underwriter, with respect to such matters as are
customary for the type of transaction covered by this
Agreement.
(j) The Underwriter 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 Underwriter with respect to such matters as are
customary for the transactions contemplated by this Agreement;
In rendering such opinions, counsel to the Indenture Trustee
may rely on the opinion of the office of the general counsel to the Indenture
Trustee.
(k) The Underwriter shall have received an opinion
of counsel to the Owner Trustee, and such other counsel
reasonably satisfactory to the Underwriter and its counsel,
dated the Closing Date and satisfactory in form and substance
to the Underwriter, with respect to such matters as are
customary for the type of transaction contemplated by this
Agreement;
(l) The Certificates have been rated at least "A"
by Standard & Poor's, A3 by Moody's or "A+" by Duff &
Phelps. 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, A3 by Moody's and "A" by
Duff & Phelps;
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(m) The Underwriter 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) that 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;
(n) On the Closing Date, all of the Notes shall have
been issued and sold pursuant to the Note Underwriting
Agreement; and
(o) CITSF, the Banks and the Underwriter 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 Underwriter, or cause the
Underwriter to be furnished, with such number of conformed copies of such
opinions, certificates, letters and documents as the Underwriter reasonably
requests.
8. Indemnification. (a) The Banks jointly and severally will
indemnify and hold harmless the Underwriter against any losses, claims, damages
or liabilities, to which the Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of, or are based upon, any untrue statement or
alleged untrue statement of any material fact contained in the Preliminary
Prospectus, 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
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reimburse the Underwriter for any legal or other expenses reasonably incurred by
the Underwriter in connection with investigating or defending any such action or
claim; provided, however, that (i) the 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 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 the Underwriter
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 the Underwriter (or
any person controlling any the Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Certificates which are the
subject thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) at or prior to the confirmation of the sale of such
Certificates to such person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented).
(b) The Underwriter 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 the Underwriter expressly for use in the Preliminary
Prospectus, the Registration Statement or the Prospectus (or any amendment or
supplement).
(c) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have hereunder or otherwise, other than on account of this
indemnity agreement. In case any such action shall be brought against an
indemnified party and it shall have notified the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to
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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
the Underwriter within the meaning of the Act; and the Underwriter's obligations
under this Section 8 shall be in addition to any liability which the Underwriter
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of 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 Underwriter 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 Underwriter, as incurred,
in such proportions so that the Underwriter is responsible for that portion
represented by the percentage that the underwriting discount and commissions
bear to the initial public offering price appearing thereon and the 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 the Underwriter within the meaning of Section 15 of the Act shall
have the same rights to contribution as the Underwriter, and each director of
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.
10. 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 Underwriter set
forth in or
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made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriter, each Bank or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Certificates. If for any reason the purchase of the
Certificates by the Underwriter is not consummated, each Bank shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
6 and the respective obligations of the Banks and the Underwriter pursuant to
Section 5, 6, 8 and 9 shall remain in effect. If the purchase of the
Certificates by the Underwriter is not consummated for any reason other than
solely because of the occurrence of any event specified in clauses (ii), (iii)
or (iv) of Section 7(c), the Banks will reimburse the Underwriter for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Certificates.
11. Notices. All communications hereunder will be in writing
and, if sent to the Underwriter, will be mailed, delivered or telegraphed and
confirmed to the Underwriter at Chase Securities Inc., 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 Manhattan Bank,
270 Park Avenue, New York, New York 10017, Attention: ___________.
12. Successors. This Agreement will inure to the benefit of,
and be binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Certificates
from the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
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14. No Bankruptcy Petition. The Underwriter covenants and
agrees that, prior to the date which is one year and one day after the payment
in full of all securities issued by the Trust, it will not institute against, or
join any other person in instituting against, the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or state bankruptcy or similar law.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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If the foregoing is in accordance with the Underwriter's
understanding of our agreement, kindly sign and return to us the enclosed
duplicate hereof, whereupon it will become a binding agreement between the Banks
and the Underwriter in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION
By
---------------------------------
Name: Keith Schuck
Title: Vice President
THE CHASE MANHATTAN BANK
By
--------------------------------
Name:
Title:
The foregoing Underwriting
Agreement is hereby
confirmed and accepted
as of the date
first written above:
CHASE SECURITIES INC.
By
------------------------------
Name:
Title: