CHASE MANHATTAN MARINE OWNER TRUST 1997-A
CLASS A ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
and
THE CHASE MANHATTAN BANK,
Sellers
THE CIT GROUP/SALES FINANCING, INC.,
Servicer
CLASS A UNDERWRITING AGREEMENT
------------------------------
October __, 1997
Chase Securities Inc.,
As Representative of the
Several Class A 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
Marine Owner Trust 1997-A (the "Trust") to sell $41,800,000 aggregate
principal amount of Class A-1 _____% Asset Backed Notes (the "Class A-1 Notes"),
$55,600,000 aggregate principal amount of Class A-2 _____% Asset Backed
Notes (the "Class A-2 Notes"), $50,600,000 aggregate principal amount of
Class A-3 _____% Asset Backed Notes (the "Class A-3 Notes"), $37,300,000
aggregate principal amount of Class A-4 ____% Asset Backed Notes (the "Class A-4
Notes"), $29,300,000 aggregate principal amount of Class A-5 ____% Asset Backed
Notes (the "Class A-5 Notes") and $27,700,000 aggregate principal amount of
Class A-6 _____% Asset Backed Notes (the "Class A-6 Notes," and together with
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes and the Class A-5, the "Class A 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 boats (the "Financed Boats") 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 October 1, 1997 (the "Cutoff Date") was equal to $266,262,029.25
(the "Cutoff Date Pool Balance"). The Class A Notes will be issued pursuant to
the Indenture to be dated as of October 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 Class A Notes
as contemplated herein, the Trust will issue (a) $10,650,000 aggregate
principal amount of Class B _____% Asset Backed Notes (the "Class B Notes") and
$17,312,029.25 aggregate principal amount of Class C ______% Asset Backed Notes
(the "Class C Notes," and together with the Class B Notes, the "Junior Notes")
pursuant to the Indenture, which will be sold pursuant to an underwriting
agreement dated the date hereof (the "Class B and Class C Underwriting
Agreement" and, together with this Agreement, the "Underwriting Agreements")
among the Banks and Chase Securities Inc. and (b) Asset Backed Certificates (the
"Certificates") pursuant to an Amended and Restated Trust Agreement to be dated
as of October 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 interest in the
Trust. The Certificates will be retained by the Banks and will not be sold
pursuant to the Underwriting Agreements. The Class A Notes and the Junior Notes
are sometimes referred to collectively herein as the "Notes".
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 October 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 Class A Notes from the Banks by the several underwriters named in Schedule I
hereto (the "Class A 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 Class A
Underwriters, that:
(a) A registration statement on Form S-3 (No. 333-
32737-01-02), including a form of prospectus, relating to the
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Notes 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 Notes 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 Notes. 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 Notes 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 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
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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 Class A 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 Class A 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 Class A Underwriters pursuant to this Agreement and the Sale and Servicing
Agreement, the Class A 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) When the Junior Notes have been duly executed and
delivered by the Owner Trustee and, when authenticated by the Indenture Trustee
in accordance with theIndenture and delivered upon the order of the Banks to
Chase Securities Inc. pursuant to the Class B and Class C Underwriting Agreement
and the Sale and Servicing Agreement, the Junior 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
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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.
(g) The execution, delivery and performance by such Bank of
this Agreement, the Class B and Class C 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,
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delivery and performance of this Agreement, the Class B and Class C 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.
(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 Class B and Class C Underwriting
Agreement have been duly executed and delivered by such Bank.
3. Purchase, Sale, Payment and Delivery of the Class A 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 Class A Underwriter, and each Class A 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 Class A 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
Class A 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 Class A 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 Class A
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 Class A Underwriter in Schedule I hereto and (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 Class A
Underwriter in Schedule I hereto.
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 Class A Underwriter, and each Class A 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 Class A Underwriter in
Schedule II 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 Class A 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 Class A 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 Class
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A 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 Class A Underwriter in Schedule II hereto and (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 Class A
Underwriter in Schedule II hereto.
Each Bank will deliver the Class A Notes being sold by it
hereunder to the Representative for the respective accounts of the Class A
Underwriters against payment of the purchase price in immediately available
funds drawn to the order of Chase USA and Chase, in each case with respect to
the Class A Notes sold by it, at the offices of Orrick, Herrington & Sutcliffe
LLP in New York, New York at 10:00 a.m., New York City time, on October __, 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 Class A Notes of each class to be so delivered will be
initially represented by one or more definitive Class A 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 Class A 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 Class A Underwriters. It is understood that
the Class A Underwriters propose to offer the Class A 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 Class A Underwriters that:
(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 Class A Notes is required to be delivered to
purchasers of the Class A Notes by the Class A Underwriters and dealers
participating in the initial offering and sale of the Class A Notes on the
Closing Date under the Act (without regard to any market making prospectus
required to be delivered by any Class A 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
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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 Class A 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.
(d) Such Bank will cooperate with the Representative in
arranging for the qualification of the Class A 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 Class A 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 Class A Notes is outstanding, such
Bank will furnish to the Representative as soon as practicable, (A) all
documents distributed, or caused to be
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distributed, by such Bank to the Class A 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 Class A 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 Class A Notes) collateralized by, or certificates
(other than the Certificates) evidencing an ownership interest in, receivables
generated pursuant to marine 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 Class A Underwriters may reimburse the Banks for certain expenses incurred
by the Banks as agreed to by the Class A Underwriters and the Banks.
7. Conditions to the Obligations of the Class A
Underwriters. The obligation of the several Class A Underwriters
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to purchase and pay for the Class A 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, Inc. which, in the reasonable judgment of the
Representative, materially impairs the investment quality of
the Class A Notes or makes it impractical to market the Class
A 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
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impracticable or inadvisable to proceed with completion of the
sale of and any payment for the Class A 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 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 Representative shall have received from
Norman H. Rosen, Senior Vice President, Secretary and General
Counsel of the Servicer, such opinion or opinions, dated the
Closing Date and satisfactory in form and substance to the
Representative, with respect to corporate law matters.
(g) The Representative shall have received from
Robert S. Fisher, counsel to the Sellers, such opinion or
opinions, dated the Closing Date and satisfactory in form and
substance to the Representative, with respect to certain
matters relating to the transfer to the Trust of Preferred
Ship Mortgages in accordance with the Ship Mortgage Statutes
and other related matters as the Representative may require.
(h) The Representative shall have received from
Orrick, Herrington & Sutcliffe LLP, counsel to Class A
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 Class A
Notes, the Registration Statement, the Prospectus and other
related matters as the Representative may require, and the
Banks shall have
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furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such
matters.
(i) 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.
(j) The Representative shall have received an opinion
of 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.
(k) 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.
(l) 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;
(m) Each class of Class A Notes shall have been rated
"AAA" by Standard & Poor's, Aaa by Moody's and "AAA" by Duff &
Phelps. The Class B Notes shall have been rated "AA" by
Standard & Poor's, A1 by Moody's and "AA" by Duff & Phelps
and the Class C Notes shall have been rated "A-" by
Standard & Poor's, Baa2 by Moody's or "A-" by Duff & Phelps;
(n) 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
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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;
(o) On the Closing Date, $27,962,029.25 aggregate
amount of Junior Notes shall have been issued and sold
pursuant to the Class B and Class C Underwriting Agreement;
and
(p) CITSF, the Banks and the Representative on behalf
of the Class A 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 Class A Underwriter against any losses, claims,
damages or liabilities, to which such Class A 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 reimburse each Class A Underwriter
for any legal or other expenses reasonably incurred by such Class A Underwriter
in connection with investigating or defending any such action or claim;
provided, however, that (i) the Banks shall not be liable
13
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 Class A 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 Class A Underwriter (or any
person controlling any such Class A Underwriter) from whom the person asserting
any such loss, claim, damage or liability purchased the Class A 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 Class A 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 Class A 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 Class A 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 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
14
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 Class A Underwriter within the meaning of the Act; and each Class A
Underwriter's obligations under this Section 8 shall be in addition to any
liability which such Class A 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 Class A 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 Class A
Underwriters, as incurred, in such proportions so that the Class A 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 a Class A Underwriter within the
meaning of Section 15 of the Act shall have the same rights to contribution as
such Class A 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. Default of Class A Underwriters. If any Class A
Underwriter defaults in its obligations to purchase Class A Notes hereunder and
the aggregate principal amount of the Class A Notes that such defaulting Class A
Underwriter agreed but failed to purchase does not exceed 10% of the total
principal amount of
15
Class A Notes, the Representative may make arrangements satisfactory to the
Banks for the purchase of such Class A Notes by other persons, including the
non-defaulting Class A Underwriters, but if no such arrangements are made by the
Closing Date, the non-defaulting Class A Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Class A Notes that such defaulting Class A Underwriter agreed but failed to
purchase. If any Class A Underwriter so defaults and the aggregate principal
amount of the Class A Notes with respect to which such default or defaults occur
exceeds 10% of the total principal amount of the Class A Notes and arrangements
satisfactory to the Representative and the Banks for the purchase of such Class
A 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
Class A Underwriter or the Banks, except as provided in Section 11. Nothing
herein will relieve a defaulting Class A 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 Class A
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 Class A 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 Class A Notes. If for
any reason the purchase of the Class A Notes by the Class A 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 Class A Underwriters pursuant to Section 8 and 9 shall remain in
effect. If the purchase of the Class A Notes by the Class A 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 Class A Underwriter for all out-of-pocket expenses (including
fees and disbursements of counsel) reasonably incurred by it in connection with
the offering of the Class A Notes.
12. Notices. All communications hereunder will be in writing
and, if sent to the Representative or the Class A 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: Controller and (ii)
The Chase Manhattan Bank, 270 Park Avenue, New York, New York 10017, Attention:
Chief Financial Officer (cc: General Counsel).
16
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 Class A Notes
from any Class A 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 Class A 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 Class A 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 Class A
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 Class A Underwriters,
named in Schedule I and Schedule II
By
-------------------------------
Name:
Title:
SCHEDULE I
Principal Amount of Principal Amount of Principal Amount of
Class A Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes
- ------------------- --------------- --------------- ---------------
Chase Securities Inc.
--------------- --------------- ---------------
Goldman, Sachs & Co.
--------------- --------------- ---------------
Merrill, Lynch, Pierce,
Fenner & Smith,
Incorporated
--------------- --------------- ---------------
Total
Principal Amount of Principal Amount of Principal Amount of
Class A Underwriter Class A-4 Notes Class A-5 Notes Class A-6 Notes
------------------- --------------- --------------- ---------------
Chase Securities Inc.
--------------- --------------- ---------------
Goldman, Sachs & Co.
--------------- --------------- ---------------
Merrill, Lynch, Pierce,
Fenner & Smith,
Incorporated
--------------- --------------- ---------------
Total
19
SCHEDULE II
Principal Amount of Principal Amount of Principal Amount of
Class A Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes
- ------------------- --------------- --------------- ---------------
Chase Securities Inc.
--------------- --------------- ---------------
Goldman, Sachs & Co.
--------------- --------------- ---------------
Merrill, Lynch, Pierce,
Fenner & Smith,
Incorporated
--------------- --------------- ---------------
Total
Principal Amount of Principal Amount of Principal Amount of
Underwriter Class A-4 Notes Class A-5 Notes Class A-6 Notes
- ------------------- --------------- --------------- ---------------
Chase Securities Inc.
--------------- --------------- ---------------
Goldman, Sachs & Co.
--------------- --------------- ---------------
Merrill, Lynch, Pierce,
Fenner & Smith,
Incorporated
--------------- --------------- ---------------
Total
20