EXECUTION COPY
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CHASE MANHATTAN AUTO OWNER TRUST 1998-C
ASSET BACKED CERTIFICATES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Seller and Servicer
CERTIFICATE UNDERWRITING AGREEMENT
June 11, 1998
Chase Securities Inc.
270 Park Avenue
New York, NY 10017
Ladies and Gentlemen:
1. Introductory. Chase Manhattan Bank USA, National
Association, a national banking association (the "Bank"), proposes to form
Chase Manhattan Auto Owner Trust 1998-C (the "Trust") to sell $32,889,211.45
aggregate principal amount of 6.000% Asset Backed Certificates (the
"Certificates"), each representing a fractional undivided interest in the
Trust.
The assets of the Trust will include, among other things, a
pool of simple interest and actuarial retail installment sales contracts and
purchase money notes and other notes (the "Receivables") secured by new and
used automobiles (the "Financed Vehicles") and certain monies received
thereunder on or after the Cutoff Date (as hereinafter defined), such
Receivables to be transferred to the Trust and serviced by the Bank, as
Servicer, or by a successor Servicer. The Original Pool Balance of the
Receivables as of the close of business on May 31, 1998 (the "Cut-off Date")
was equal to $1,094,789,211.45. The Certificates will be issued pursuant to
the Amended and Restated Trust Agreement to be dated as of June 1, 1998 (as
amended and supplemented from time to time, the "Trust Agreement"), between
the Bank 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 $258,000,000.00
aggregate principal amount of Class A-1 5.588% Asset Backed Notes (the "Class
A-1 Notes"), $195,000,000.00 aggregate principal amount of Class A-2 5.747%
Asset Backed Notes (the "Class A-2 Notes"), $325,000,000.00 aggregate
principal amount of Class A-3 5.800% Asset Backed Notes (the "Class A-3
Notes") and $283,900,000.00 aggregate principal amount of Class A-4 5.850%
Asset Backed Notes (the "Class A-4 Notes" and, together with the Class A-1
Notes, the Class A-2 Notes and the Class A-3 Notes, the "Notes"), pursuant to
the Indenture to be dated as of June 1, 1998 (as amended and supplemented from
time to time, the "Indenture"), between the Trust and
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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 Bank and the underwriters
named therein (the "Note Underwriters"). The Notes and the Certificates are
sometimes referred to collectively herein as the "Securities".
Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Sale and Servicing
Agreement to be dated as of June 1, 1998 (as amended and supplemented from
time to time, the "Sale and Servicing Agreement"), between the Trust and the
Bank, as Seller and Servicer.
This is to confirm the agreement concerning the purchase of
the Certificates from the Bank by Chase Securities Inc. (the "Underwriter").
2. Representations and Warranties of the Bank. The Bank
represents and warrants to, and agrees with, the Underwriter, that:
(a) A registration statement on Form S-3 (No. 333-36939) has
been filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"Act"), and the Rules and Regulations under the Act (the "Rules and
Regulations"). Such registration statement, as amended on the date that such
registration statement or the most recent post-effective amendment thereto
became effective under the Act, including the exhibits thereto and the Term
Sheet dated June 9, 1998 relating to the Securities (the "Term Sheet")
disseminated by the Underwriter and incorporated by reference therein, is
hereinafter referred to as the "Registration Statement." The Registration
Statement has become effective, and no stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceeding for that
purpose has been instituted or, to the knowledge of the Bank, threatened by
the Commission. The conditions to the use of a registration statement on Form
S-3 under the Act, as set forth in the General Instructions to Form S-3, and
the conditions of Rule 415 of the Rules and Regulations, have been satisfied
with respect to the Registration Statement. The Bank filed the Term Sheet on
Form 8-K with the Commission pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), within two business days of its dissemination
by the Underwriter. The Bank proposes to file with the Commission pursuant to
Rule 424(b) of the Rules and Regulations a prospectus supplement to the Base
Prospectus (as defined herein) relating to the sale of the Securities (the
"Prospectus Supplement"). The base prospectus filed as part of the
Registration Statement, in the form it appears in the Registration Statement,
or in the form most recently revised and filed with the Commission pursuant to
Rule 424(b), is hereinafter referred to as the "Base Prospectus." The Base
Prospectus as supplemented by the Prospectus Supplement is hereinafter
referred to as the "Prospectus."
(b) Except to the extent that the Underwriter shall have
agreed to a modification, the Prospectus shall be in all substantive respects
in the form furnished to the Underwriter prior to the execution of this
Agreement or, to the extent not completed at such
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time, shall contain only such material changes as the Bank has advised the
Underwriter, prior to such time, will be included or made therein.
(c) The Registration Statement, at the time it became
effective, and the Prospectus, as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of the Act
and the Trust Indenture Act of 1939 and the Rules and Regulations and did not
include any untrue statement of a material fact and, in the case of the
Registration Statement, did not omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and,
in the case of the Prospectus, did not omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; on the Closing Date
(as defined herein), the Registration Statement and the Prospectus, as amended
or supplemented as of the Closing Date, will comply in all material respects
with the applicable requirements of the Act and the Rules and Regulations, and
neither the Prospectus nor any amendment or supplement thereto will include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Bank makes no representation and warranty with respect to information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon, or in conformity with, information furnished in writing to the
Bank by the Underwriter specifically for use in connection with the
preparation of the Registration Statement or the Prospectus.
(d) The Bank is a national banking association organized
under the laws of the United States, with full power and authority to own its
properties and conduct its business as described in the Prospectus, and had at
all relevant times and has power, authority and legal right to acquire, own,
sell and service the Receivables.
(e) When the Notes have been duly executed and delivered by
the Owner Trustee and, when authenticated by the Indenture Trustee in
accordance with the Indenture and delivered upon the order of the Bank to the
Note Underwriters pursuant to the Note Underwriting Agreement and the Sale and
Servicing Agreement, the Notes will be duly issued and will constitute legal,
valid and binding obligations of the Trust enforceable against the Trust in
accordance with their terms, except to the extent that the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
conservatorship, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights as such laws would apply in the event of the
insolvency, liquidation or reorganization or other similar occurrence with
respect to the Bank or the Trust or in the event of any moratorium or similar
occurrence affecting the Bank or the Trust and to general principles of
equity.
(f) The direction by the Bank to the Owner Trustee to
execute and authenticate the Certificates has been duly authorized by the Bank
and, when the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the Trust Agreement and
delivered upon the order of the Bank to the Underwriter pursuant to this
Agreement and the Sale and Servicing Agreement, the Certificates will be duly
issued and entitled to the benefits and security afforded by the Trust
Agreement.
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(g) The execution, delivery and performance by the Bank of
this Agreement, the Note Underwriting Agreement and the Basic Documents to
which the Bank is a party, and the consummation by the Bank of the
transactions provided for herein and therein have been, or will have been,
duly authorized by the Bank by all necessary action on the part of the Bank;
and neither the execution and delivery by the Bank of such instruments, nor
the performance by the Bank of the transactions herein or therein
contemplated, nor the compliance by the Bank with the provisions hereof or
thereof, will (i) conflict with or result in a breach or violation of any of
the material terms and provisions of, or constitute a material default under,
any of the provisions of the articles of association or by-laws of the Bank,
or (ii) conflict with any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Bank or its properties,
or (iii) conflict with any of the material provisions of any material
indenture, mortgage, contract or other instrument to which the Bank is a party
or by which it is bound, or (iv) result in the creation or imposition of any
lien, charge or encumbrance upon any of its property pursuant to the terms of
any such indenture, mortgage, contract or other instruments, except, in the
case of clauses (ii) and (iii), for any such breaches or conflicts as would
not individually or in the aggregate have a material adverse effect on the
transactions contemplated hereby or on the ability of the Bank to consummate
such transactions.
(h) When executed and delivered by the parties thereto, each
of the Sale and Servicing Agreement and the Trust Agreement will constitute a
legal, valid and binding obligation of the Bank, enforceable against the Bank
in accordance with its terms, except to the extent that the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
conservatorship, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights as such laws would apply in the event of the
insolvency, liquidation or reorganization or other similar occurrence with
respect to the Bank or in the event of any moratorium or similar occurrence
affecting the Bank and to general principles of equity.
(i) All approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any court,
governmental agency or body or official (except with respect to the state
securities or "blue sky" laws of various jurisdictions), if so required in
connection with the execution, delivery and performance of this Agreement, the
Note Underwriting Agreement and the Basic Documents to which the Bank is a
party has been or will be taken or obtained on or prior to the Closing Date.
(j) As of the Closing Date, the representations and
warranties of the Bank, as Seller and Servicer, in the Trust Agreement will be
true and correct.
(k) This Agreement and the Note Underwriting Agreement have
been duly executed and delivered by the Bank.
3. Purchase, Sale, Payment and Delivery of the Certificates.
On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the Bank
agrees to sell to the Underwriter, and the Underwriter agrees, to purchase
from the Bank, at a purchase price of 99.650000% of the face
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amount thereof, the Certificates plus accrued interest at the Certificate Rate
from June 17, 1998 to but excluding the Closing Date.
The Bank will deliver the Certificates to the Underwriter
against payment of the purchase price in immediately available funds drawn to
the order of the Bank at the offices of Simpson Thacher & Bartlett in New
York, New York at 10:00 a.m., New York City time, on June 17, 1998 or at such
other time not later than seven full business days thereafter as the
Underwriter and the Bank determine, such time being herein referred to as the
"Closing Date." The Certificates to be so delivered will be initially
represented by one or more definitive Certificates registered in the name of
Cede & Co., the nominee of The Depository Trust Company ("DTC"), except for a
Certificate registered in the name of Chase Securities Inc. in an amount of
$211.45, and will be made available for inspection by the Underwriter at the
office where delivery and payment for such Certificates is to take place no
later than 1:00 p.m., New York City time, on the Business Day prior to the
Closing Date.
4. Offering by the Underwriter. It is understood that the
Underwriter proposes to offer the Certificates for sale to the public (which
may include selected brokers and dealers) as set forth in the Prospectus.
5. Covenants of the Bank. The Bank covenants and agrees with
the Underwriter that:
(a) The Bank will file the Prospectus with the Commission
pursuant to Rule 424(b) of the Rules and Regulations within the time
prescribed therein and will provide evidence satisfactory to the Underwriter
of such timely filing. During any period that a prospectus relating to the
Certificates is required to be delivered to purchasers of the Certificates by
the underwriters and dealers participating in the initial offering and sale of
the Certificates on the Closing Date under the Act (without regard to any
market making prospectus required to be delivered by the Underwriter pursuant
to the Act) (a "prospectus delivery period"), the Bank will not file any
amendments to the Registration Statement, or any amendments or supplements to
the Prospectus, unless it shall first have delivered copies of such amendments
or supplements to the Underwriter, and if the Underwriter shall have
reasonably objected thereto promptly after receipt thereof; the Bank will
promptly advise the Underwriter or its counsel (i) when notice is received
from the Commission that any post-effective amendment to the Registration
Statement has become or will become effective, (ii) of any request by the
Commission for any amendment or supplement to the Registration Statement or
the Prospectus or for any additional information and (iii) of any order or
communication suspending or preventing, or threatening to suspend or prevent,
the offer and sale of the Certificates or of any proceedings or examinations
that may lead to such an order or communication, whether by or of the
Commission or any authority administering any state securities or "blue sky"
law, as soon as the Bank is advised thereof, and will use its reasonable
efforts to prevent the issuance of any such order or communication and to
obtain as soon as possible its lifting, if issued.
(b) If, at any time during the prospectus delivery period,
any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue
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statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus in order to comply with the Act or the Rules and
Regulations, the Bank promptly will prepare and file with the Commission
(subject to the Underwriter's prior review pursuant to paragraph (a) of this
Section 5), an amendment or supplement which will correct such statement or
omission or an amendment or supplement which will effect such compliance.
(c) The Bank will furnish to the Underwriter copies of the
Registration Statement, each preliminary prospectus supplement relating to the
Certificates, the Prospectus, and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Underwriter may reasonably request.
(d) The Bank will cooperate with the Underwriter in
arranging for the qualification of the Certificates for sale and the
determination of their eligibility for investment under the laws of such
jurisdictions as the Underwriter designates and will cooperate in continuing
such qualifications in effect so long as required for the distribution of the
Certificates; provided, however, that neither the Bank nor the Trust shall be
obligated to qualify to do business in any jurisdiction in which it is not
currently so qualified or to take any action which would subject it to general
or unlimited service of process in any jurisdiction where it is not now so
subject.
(e) For a period from the date of this Agreement until the
retirement of the Certificates, the Bank, as Servicer, will furnish to the
Underwriter copies of each certificate and the annual statements of compliance
delivered to independent certified public accountants' and reports furnished
to the Indenture Trustee or the Owner Trustee pursuant to the Sale and
Servicing Agreement, as soon as practicable after such statements and reports
are furnished to the Indenture Trustee or the Owner Trustee.
(f) So long as any of the Certificates is outstanding, the
Bank will furnish to the Underwriter as soon as practicable, (A) all documents
distributed, or caused to be distributed, by the Bank to the
Certificateholders, (B) all documents filed, or caused to be filed, by the
Bank with respect to the Trust with the Commission pursuant to the Securities
Exchange Act, and any order of the Commission thereunder or pursuant to a
"no-action" letter from the staff of the Commission and (C) from time to time,
such other information in the possession of the Bank concerning the Trust and
any other information concerning the Bank filed with any governmental or
regulatory authority which is otherwise publicly available, as the Underwriter
may reasonably request.
(g) On or before the Closing Date, the Bank shall cause its
computer records relating to the Receivables to be marked to show the Trust's
absolute ownership of the Receivables, and from and after the Closing Date
neither the Bank nor the Servicer shall take any action inconsistent with the
Trust's ownership of such Receivables and the security interest of the
Indenture Trustee therein, other than as permitted by the Sale and Servicing
Agreement.
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(h) To the extent, if any, that the rating provided with
respect to the Certificates by Moody's, Standard & Poor's and/or Fitch is
conditional upon the furnishing of documents or the taking of any other
actions by the Bank agreed upon on or prior to the Closing Date, the Bank
shall furnish such documents and take any such other actions.
(i) For the period beginning on the date hereof and ending
on the Closing Date, unless waived by the Underwriter, neither the Bank nor
any trust originated, directly or indirectly, by the Bank will offer to sell
or sell notes (other than the Notes) collateralized by, or certificates (other
than the Certificates) evidencing an ownership interest in, receivables
generated pursuant to retail automobile or light-duty truck installment sale
contracts or purchase money loans.
6. Payment of Expenses. The Bank will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the Indenture Trustee's and Owner
Trustee's acceptance fee and the reasonable fees and disbursements of the
counsel to the Indenture Trustee and counsel to the Owner Trustee, (iii) the
fees and disbursements of Price Waterhouse LLP, (iv) the fees of the Rating
Agencies and (v) blue sky expenses; provided, however, that the Underwriter
may reimburse the Bank for certain expenses incurred by the Bank as agreed to
by the Underwriter and the Bank.
7. Representation of the Underwriter. The Underwriter hereby
represents and warrants that the Term Sheet constitutes the only "Series Term
Sheet" (as such term is defined in the no-action letter addressed to Greenwood
Trust Company, Discover Card Master Trust I dated April 5, 1996) and the only
"Computational Materials," "ABS Term Sheets," "Structural Term Sheets" or
"Collateral Term Sheet" (as such terms are defined in the no-action letters
addressed to Kidder, Peabody Acceptance Corporation I, et al. dated May 20,
1994 and to the Public Securities Association dated February 17, 1995)
disseminated by it in connection with offering of the Certificates
contemplated hereunder.
8. Conditions to the Obligations of the Underwriter. The
obligation of the Underwriter to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of
the Bank herein on the date hereof and as of the Closing Date, to the accuracy
of the statements of officers of the Bank made pursuant to the provisions
hereof, to the performance by the Bank of its obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to the date hereof, the Underwriter shall
have received a letter (a "Procedures Letter"), dated the date of
this Agreement of each of Price Waterhouse LLP and Arthur Andersen
LLP 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.
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(b) The Prospectus Supplement shall have been filed in the
manner and within the time period required by Rule 424(b) of the
Rules and Regulations; and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Bank, Chase or The
Chase Manhattan Corporation which, in the reasonable judgment of the
Underwriter, materially impairs the investment quality of the
Certificates or makes it impractical to market the Certificates; (ii)
any suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of the Bank, Chase or The Chase Manhattan Corporation
on any exchange or in the over-the-counter market by such exchange or
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 Bank, 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 Bank,
dated the Closing Date and satisfactory in form and substance to the
Underwriter, with respect to certain matters relating to the
transfers of the Receivables from the Bank to the Trust and with
respect to a grant of a security interest in the Receivables to the
Indenture Trustee, and an opinion of Richards, Layton & Finger,
special counsel to the Bank, with respect to the perfection of the
Trust's and the Indenture Trustee's interests in the Receivables.
(f) The Underwriter shall have received from Gibson, Dunn &
Crutcher LLP, counsel to the Underwriter, such opinion or opinions,
dated the Closing Date and satisfactory in form and substance to the
Underwriter, with respect to the validity of the Certificates, the
Registration Statement, the Prospectus and other related matters as
the Underwriter may require, and the Bank shall have furnished to
such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
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(g) The Underwriter shall have received an opinion of
Simpson Thacher & Bartlett, special tax counsel to the Bank, dated
the Closing Date and reasonably satisfactory in form and to the
effect (a) that under current law the Notes will be characterized as
debt, and the Trust will not be characterized as an association (or a
publicly traded partnership) taxable as a corporation for United
States federal income tax purposes and (b) that, subject to the
qualifications set forth therein, the discussion set forth in the
Prospectus Supplement under the caption "Certain Federal Income Tax
Consequences" is an accurate summary of the United States federal
income tax matters described therein.
(h) 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.
(i) The Underwriter shall have received an opinion of
Richards, Layton & Finger, special counsel to the Owner Trustee, and
such other counsel reasonably satisfactory to the Underwriter and its
counsel, dated the Closing Date and satisfactory in form and
substance to the Underwriter, with respect to such matters as are
customary for the type of transaction contemplated by this Agreement.
(j) The Certificates have been rated "A+" by Standard &
Poor's, A2 by Moody's and "A+" by Fitch.
(k) The Underwriter shall have received a certificate, dated
the Closing Date, of an attorney-in-fact, a Vice President or more
senior officer of the Bank in which such person, to the best of his
or her knowledge after reasonable investigation, shall state that (i)
the representations and warranties of the Bank in this Agreement are
true and correct in all material respects on and as of the Closing
Date, (ii) the Bank has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date, (iii) the representations and
warranties of the Bank, as Seller and Servicer, in the Sale and
Servicing Agreement and, as Depositor, in the Trust Agreement, are
true and correct as of the dates specified in the Sale and Servicing
Agreement and the Trust Agreement, (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are threatened
by the Commission, (v) subsequent to the date of the Prospectus,
there has been no material adverse change in the financial position
or results of operation of the Bank's automotive finance business
except as set forth in or contemplated by the Prospectus or as
described in such certificate and (vi) the Prospectus does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances in which
they were made, not misleading.
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(l) On the Closing Date, all of the Notes shall have been
issued and sold pursuant to the Note Underwriting Agreement.
(m) The Class A-1 Notes shall have been rated "A-1+" by
Standard & Poor's, P-1 by Moody's and "F1+" by Fitch, and the Class
A-2 Notes, Class A-3 Notes and Class A-4 Notes shall have been rated
"AAA" by Standard & Poor's, Aaa by Moody's and "AAA" by Fitch.
The Bank will furnish the Underwriter, or cause the
Underwriter to be furnished, with such number of conformed copies of such
opinions, certificates, letters and documents as the Underwriter reasonably
requests.
9. Indemnification. (a) The Bank will indemnify and hold
harmless the Underwriter against any losses, claims, damages or liabilities,
to which the Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of, or are based upon, any untrue statement or alleged
untrue statement of any material fact contained in any preliminary prospectus
supplement, the Registration Statement, the Prospectus (other than any market
making prospectus) or any amendment or supplement thereto, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and will reimburse the Underwriter for any legal or other
expenses reasonably incurred by the Underwriter in connection with
investigating or defending any such action or claim; provided, however, that
(i) the Bank shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of, or is based upon, an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus supplement, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Bank by the Underwriter
expressly for use therein and (ii) such indemnity with respect to any
preliminary prospectus supplement shall not inure to the benefit of the
Underwriter (or any person controlling any the Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Certificates which are the subject thereof if such person did not receive a
copy of the Prospectus (or the Prospectus as supplemented) at or prior to the
confirmation of the sale of such Certificates to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in such preliminary prospectus supplement was
corrected in the Prospectus (or the Prospectus as supplemented).
(b) The Underwriter agrees to indemnify and hold harmless
the Bank, its directors, each of its officers or agents who signed the
Registration Statement, and each person, if any, who controls the Bank within
the meaning of Section 15 of the Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section 9, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in any
preliminary prospectus supplement, the Registration Statement or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Bank by
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the Underwriter expressly for use in such preliminary prospectus supplement,
the Registration Statement or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability which it may have hereunder or otherwise, other than on account of
this indemnity agreement. In case any such action shall be brought against an
indemnified party and it shall have notified the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party with respect to such action), and it being understood that
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys,
and, after notice from the indemnifying party to the indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to the indemnified party under subsections (a) or (b) of this Section 9
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by the indemnified party, in connection with the defense
thereof other than reasonable costs of investigation.
(d) The obligations of the Bank under this Section 9 shall
be in addition to any liability which the Bank may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Underwriter within the meaning of the Act; and the Underwriter's
obligations under this Section 9 shall be in addition to any liability which
the Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Bank and to each person, if
any, who controls the Bank within the meaning of Section 15 of the Act.
10. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 9 is for any reason held to be unavailable other than in accordance
with its terms, the Bank and the Underwriter shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated
by said indemnity agreement incurred by the Bank or the Underwriter, as
incurred, in such proportions so that the Underwriter is responsible for that
portion represented by the percentage that the underwriting discount and
commissions bear to the initial public offering price appearing thereon and
the Bank is responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls the Underwriter within the meaning of Section 15
of the Act shall have the same rights to contribution as the Underwriter, and
each director of the Bank, each officer or agent of the Bank who signed the
Registration Statement, and each person, if any, who
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controls the Bank within the meaning of Section 15 of the Act shall have the
same rights to contribution as the Bank.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Bank or its officers and of the Underwriter set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation or statement as to the results thereof, made
by or on behalf of the Underwriter, the Bank or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates. If for any reason the
purchase of the Certificates by the Underwriter is not consummated, the Bank
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 6 and the respective obligations of the Bank and the
Underwriter pursuant to Section 9 and 10 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 8(c), the Bank will reimburse the
Underwriter for all out-of-pocket expenses (including fees and disbursements
of counsel) reasonably incurred by it in connection with the offering of the
Certificates.
12. 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 Bank, will be mailed, delivered, or telegraphed and confirmed
to Chase Manhattan Bank USA, National Association, c/o Chase Manhattan
Automotive Finance Corporation, 900 Stewart Avenue, Garden City, New York, New
York 11530, Attention: Financial Controller.
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 9 and 10 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.
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. 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,
13
the Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED 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
Bank and the Underwriter in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By /s/ Patricia Garvey
-------------------------
Title: Vice President
The foregoing Underwriting
Agreement is hereby
confirmed and accepted as of
the date first written above:
CHASE SECURITIES INC.
By /s/ Brad Dansker
-------------------------
Title: Vice President