CHASE CREDIT CARD MASTER TRUST
(formerly known as Chemical Master Credit Card Trust I)
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
(Transferor)
THE CHASE MANHATTAN BANK
(Servicer)
UNDERWRITING AGREEMENT
(Standard Terms)
September 17, 1998
Chase Securities Inc.
As Underwriter and as
Representative of the
several Underwriters
named in the
Terms Agreement
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Chase Manhattan Bank USA, National Association (the "Bank"),
proposes to cause the Chase Credit Card Master Trust (formerly known as Chemical
Master Credit Card Trust I) (the "Trust") to issue the Fixed Rate Asset Backed
Certificates designated in the applicable Terms Agreement (as hereinafter
defined) (the "Certificates"). The Certificates will be issued pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
described in the applicable Terms Agreement between the Bank, as Transferor on
and after June 1, 1996, The Chase Manhattan Bank, as Transferor prior to June 1,
1996 and as Servicer (the "Servicer"), and the trustee identified in the
applicable Terms Agreement (the "Trustee"), as supplemented by the Series
Supplement having the date stated in the applicable Terms Agreement, between the
Bank, as Transferor, the Servicer and the Trustee (the "Supplement"). The Series
of Certificates designated in the applicable Terms Agreement will be sold in a
public offering through the underwriters listed on Schedule I to the applicable
Terms Agreement (the "Underwriters"). Certificates of any Series sold to the
Underwriters shall be sold pursuant to a Terms Agreement by and between the Bank
and the Underwriters, a form of which is attached hereto as Exhibit A (a "Terms
Agreement"), which incorporates by reference this Underwriting Agreement (the
"Agreement," which may include the applicable Terms Agreement if the context so
requires). Any Series of Certificates sold pursuant to any Terms Agreement may
include the benefits of a letter of credit, cash collateral guaranty or account,
collateral interest, surety bond, insurance policy, spread account, reserve
account or other similar arrangement for the benefit of the Certificateholders
of such Series ("Credit Enhancement"). With respect to any such Credit
Enhancement, the Bank may enter into an agreement (the "Credit Enhancement
Agreement") by and between the Bank and the provider of the Credit Enhancement
(the "Credit Enhancement Provider"). The term "applicable Terms Agreement" means
the Terms Agreement dated the date hereof. Each Certificate will represent a
specified percentage undivided interest in the Trust. The assets of the Trust
include, among other things, certain amounts due on a portfolio of MasterCard7
and VISA7 revolving credit card accounts of the Bank (the "Receivables"), and
the benefit of the Credit Enhancement, if any. To the extent not defined herein,
capitalized terms used herein have the meanings assigned to such terms in the
Pooling and Servicing Agreement. Unless otherwise stated herein or in the
applicable Terms Agreement, as the context otherwise requires or if such term is
otherwise defined in the Pooling and Servicing Agreement, each capitalized term
used or defined herein or in the applicable Terms Agreement shall relate only to
the Series of Certificates designated in the applicable Terms Agreement and no
other Series of Asset Backed Certificates issued by the Trust.
Section 1. Representations and Warranties of the Bank. Upon
the execution of the applicable Terms Agreement, the Bank represents and
warrants to the Underwriters that:
(a) The Bank has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Act"), a
registration statement on Form S-3 (having the registration number
stated in the applicable Terms Agreement), including a form of
prospectus, relating to the Certificates. Such registration statement,
as amended at the time it was declared effective by the Commission,
including all material incorporated by reference therein, including all
information contained in any Additional Registration Statement (as
defined herein) and deemed to be part of such registration statement as
of the time such Additional Registration Statement (if any) was
declared effective by the Commission pursuant to the General
Instructions of the Form on which it was filed and including all
information (if any) deemed to be a part of such registration statement
as of the time it was declared effective by the Commission pursuant to
Rule 430A(b) ("Rule 430A(b)") under the Act (such registration
statement, the "Initial Registration Statement") has been declared
effective by the Commission. If any post-effective amendment has been
filed with respect to the Initial Registration Statement, prior to the
execution and delivery of the applicable Terms Agreement, the most
recent such amendment has been declared effective by the Commission. If
2
(i) an additional registration statement, including the contents of the
Initial Registration Statement incorporated by reference therein and
including all information (if any) deemed to be a part of such
additional registration statement pursuant to Rule 430A(b)(the
"Additional Registration Statement") relating to the Certificates has
been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)")
under the Act and, if so filed, has become effective upon filing
pursuant to Rule 462(b), then the Certificates have been duly
registered under the Act pursuant to the Initial Registration Statement
and such Additional Registration Statement or (ii) an Additional
Registration Statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing pursuant
to Rule 462(b), then upon such filing the Certificates will have been
duly registered under the Act pursuant to the Initial Registration
Statement and such Additional Registration Statement. If the Bank does
not propose to amend the Initial Registration Statement or, if an
Additional Registration Statement has been filed and the Bank does not
propose to amend it and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the
execution and delivery of the applicable Terms Agreement, the most
recent amendment (if any) to each such registration statement has been
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) under the Act or, in the case of any
Additional Registration Statement, Rule 462(b). The Initial
Registration Statement and any Additional Registration Statement are
hereinafter referred to collectively as the "Registration Statements"
and individually as a "Registration Statement." Copies of the
Registration Statements, together with any post-effective amendments
have been furnished to the Underwriters. The Bank proposes to file with
the Commission pursuant to Rule 424 ("Rule 424") under the Act a
supplement (the "Prospectus Supplement") to the form of prospectus
included in a Registration Statement (such prospectus, in the form it
appears in a Registration Statement or in the form most recently
revised and filed with the Commission pursuant to Rule 424 is
hereinafter referred to as the "Basic Prospectus") relating to the
Certificates and the plan of distribution thereof. The Basic Prospectus
and the Prospectus Supplement, together with any amendment thereof or
supplement thereto, is hereinafter referred to as the "Final
Prospectus." Except to the extent that the Underwriters shall agree in
writing to a modification, the Final Prospectus shall be in all
substantial respects in the form furnished to the Underwriters prior to
the execution of the relevant Terms Agreement, or to the extent not
completed at such time, shall contain only such material changes as the
Bank has advised the Underwriters, prior to such time, will be included
therein. Any preliminary form of the Prospectus Supplement which has
heretofore been filed
3
pursuant to Rule 424 is hereinafter called a "Preliminary
Final Prospectus;"
(b) The Initial Registration Statement, including such
amendments thereto as may have been required on the date of the
applicable Terms Agreement, and the Additional Registration Statement
(if any), relating to the Certificates, have been filed with the
Commission and such Initial Registration Statement as amended, and the
Additional Registration Statement (if any), have become effective. No
stop order suspending the effectiveness of the Initial Registration
Statement or the Additional Registration Statement (if any) has been
issued and no proceeding for that purpose has been instituted or, to
the knowledge of the Bank, threatened by the Commission;
(c) The Initial Registration Statement conforms, and any
amendments or supplements thereto and the Final Prospectus will
conform, in all material respects to the requirements of the Act, and
do not and will not, as of the applicable effective date as to the
Initial Registration Statement and any amendment thereto, as of the
applicable filing date as to the Final Prospectus and any supplement
thereto, and as of the Closing Date, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
the Additional Registration Statement (if any) and the Initial
Registration Statement conform, in all material respects to the
requirements of the Act, and do not and will not, as of the applicable
effective date as to the Additional Registration Statement, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall apply only during the period that a prospectus relating
to the Certificates is required to be delivered under the Act by
dealers in connection with the initial public offering of such
Certificates (such period being hereinafter sometimes referred to as
the "prospectus delivery period"); provided, further, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Bank by or on behalf of the Underwriters
specifically for use in connection with the preparation of a
Registration Statement and the Final Prospectus;
(d) As of the Closing Date, the representations and warranties
of the Bank, as Transferor, in the Pooling and Servicing Agreement and
the Supplement will be true and correct;
(e) The Bank has been duly organized and is validly existing
as a national bank in good standing under the laws
4
of the United States, with power and authority to own its properties
and conduct its business as described in the Final Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of the Bank and its
subsidiaries, taken as a whole;
(f) The Certificates have been duly authorized, and, when
issued and delivered pursuant to the Pooling and Servicing Agreement
and the Supplement, duly authenticated by the Trustee and paid for by
the Underwriters in accordance with the terms of this Agreement and the
applicable Terms Agreement, will be duly and validly executed, issued
and delivered and entitled to the benefits provided by the Pooling and
Servicing Agreement and the Supplement; each of the Pooling and
Servicing Agreement and the Supplement have been duly authorized and,
when executed and delivered by the Bank, as Transferor, each of the
Pooling and Servicing Agreement and the Supplement will (assuming due
execution and delivery by the Trustee) constitute a valid and binding
agreement of the Bank; the Certificates, the Pooling and Servicing
Agreement and the Supplement conform to the descriptions thereof in the
Final Prospectus in all material respects; and, if applicable, when
executed by the Bank, as Transferor, the Credit Enhancement Agreement
will (assuming due execution and delivery by the Trustee and Credit
Enhancement Provider) constitute a valid and binding agreement of the
Bank;
(g) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required to be
obtained or made by the Bank for the consummation of the transactions
contemplated by this Agreement, the applicable Terms Agreement, the
Pooling and Servicing Agreement or the Supplement except such as have
been obtained and made under the Act, such as may be required under
state securities laws and the filing of any financing statements
required to perfect the Trust's interest in the Receivables;
(h) The Bank is not in violation of its Articles of
Association or By-laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its
properties is bound which would have a material adverse effect on the
transactions contemplated herein, in the Pooling and Servicing
Agreement or the Supplement. The execution, delivery and performance of
this Agreement, the applicable Terms Agreement, the Pooling and
Servicing Agreement, the
5
Supplement and the Credit Enhancement Agreement, and the issuance and
sale of the Certificates and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
of, or constitute a default under, any statute, rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Bank or any of its properties or any material
agreement or instrument to which the Bank is a party or by which the
Bank is bound or to which any of the properties of the Bank is subject,
or the Articles of Association or Bylaws of the Bank except for any
such breaches or violations or defaults as would not individually or in
the aggregate have a material adverse effect on the transactions
contemplated herein, in the Pooling and Servicing Agreement and the
Supplement;
(i) Other than as set forth or contemplated in the Final
Prospectus, there are no legal or governmental proceedings pending or,
to the knowledge of the Bank, threatened to which any of the Bank or
its subsidiaries is or may be a party or to which any property of the
Bank or its subsidiaries is or may be the subject which, if determined
adversely to the Bank, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the Bank's
credit card business or on the interests of the holders of the
Certificates; and there are no contracts or other documents of a
character required to be filed as an exhibit to the Initial
Registration Statement or the Additional Registration Statement (if
any) or to be described in the Initial Registration Statement, the
Additional Registration Statement (if any) or the Basic Prospectus
which are not filed or described as required; and
(j) Each of this Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Bank.
Section 2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the covenants, representations and warranties
herein set forth, the Bank agrees to sell to the Underwriters, and the
Underwriters agree to purchase from the Bank, the principal amount of
Certificates set forth opposite each Underwriter's name in Schedule I to the
applicable Terms Agreement. The purchase price for the Certificates shall be as
set forth in the applicable Terms Agreement.
The Bank acknowledges and agrees that Chase Securities Inc.
may sell Certificates to any of its affiliates, and that any such affiliates may
sell such Certificates to Chase Securities Inc.
Section 3. Delivery and Payment. Unless otherwise provided
in the applicable Terms Agreement, payment for Certificates shall be made to
the Bank or to its order by wire
6
transfer of same day funds at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx in New
York, New York at 10:00 A.M., New York City time, on the Closing Date (as
hereinafter defined) specified in the Terms Agreement, or at such other time on
the same or such other date as the Underwriters and the Bank may agree upon. The
time and date of such payment for the Certificates as specified in the
applicable Terms Agreement are referred to herein as the "Closing Date." As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City.
Unless otherwise provided in the applicable Terms Agreement,
payment for the Certificates shall be made against delivery to the Underwriters
of the Certificates registered in the name of Cede & Co. as nominee of The
Depository Trust Company and in such denominations as the Underwriters shall
request in writing not later than two full Business Days prior to the Closing
Date. The Bank shall make the Certificates available for inspection by the
Underwriters in New York, New York not later than one full Business Day prior to
the Closing Date.
Section 4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Certificates for sale to the public, which may
include selected dealers, as set forth in the Final Prospectus.
Section 5. Covenants of the Bank. The Bank covenants and
agrees with the Underwriters that upon the execution of the applicable Terms
Agreement:
(a) Promptly following the execution of such applicable Terms
Agreement, the Bank will prepare a Prospectus Supplement setting forth
the amount of Certificates covered thereby and the terms thereof not
otherwise specified in the Basic Prospectus, the price at which such
Certificates are to be purchased by the Underwriters, the initial
public offering price, the selling concessions and allowances, and such
other information as the Bank deems appropriate. The Bank will file
such Prospectus Supplement with the Commission pursuant to Rule 424
within the time prescribed therein and will provide evidence
satisfactory to the Underwriters of such timely filing. In addition, to
the extent that the Underwriters (i) have provided to the Bank
Collateral Term Sheets (as defined below) that the Underwriters have
provided to prospective investors, the Bank will file such Collateral
Term Sheets as an exhibit to a report on Form 8-K within two business
days of its receipt thereof, or (ii) have provided to the Bank
Structural Term Sheets or Computational Materials (each as defined
below) that such Underwriters have provided to a prospective investor,
the Bank will file or cause to be filed with the Commission a report on
Form 8- K containing such Structural Term Sheet and Computational
Materials, as soon as reasonably practicable after the date of this
Agreement, but in any event, not later than the date
7
on which the Final Prospectus is filed with the Commission
pursuant to Rule 424.
(b) During the prospectus delivery period, before filing any
amendment or supplement to the Initial Registration Statement, the
Additional Registration Statement (if any) or the Final Prospectus, the
Bank will furnish to the Underwriters copies of the proposed amendment
or supplement for review and will not file any such proposed amendment
or supplement to which any Underwriter reasonably objects.
(c) During the prospectus delivery period, the Bank will
advise the Underwriters promptly after it receives notice thereof, (i)
when any amendment to any Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment or
supplement to any Registration Statement or the Final Prospectus or for
any additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of any Registration
Statement or the initiation or threatening of any proceeding for that
purpose, and (iv) of the receipt by the Bank of any notification with
respect to any suspension of the qualification of the Certificates for
offer and sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and will use its best efforts to
prevent the issuance of any such stop order or notification and, if any
is issued, will promptly use its best efforts to obtain the withdrawal
thereof.
(d) If, at any time during the prospectus delivery period, any
event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act, the Bank promptly will prepare
and file with the Commission, an amendment or a supplement which will
correct such statement or omission or effect such compliance.
(e) The Bank will endeavor to qualify the Certificates for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters shall reasonably request and will
continue such qualification in effect so long as reasonably required
for distribution of the Certificates; provided, however, that the Bank
shall not be obligated to qualify to do business in any jurisdiction in
which it is not currently so qualified; and provided, further, that the
Bank shall not be required to file a general consent to service of
process in any jurisdiction.
(f) The Bank will furnish to each Underwriter, without charge,
two copies of each Registration Statement (including
8
exhibits thereto), one of which will be signed, and to each Underwriter
conformed copies of each Registration Statement (without exhibits
thereto) and, during the prospectus delivery period, as many copies of
any Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto as each Underwriter may reasonably request.
(g) For a period from the date of this Agreement until the
retirement of the Certificates, or until such time as the Underwriters
shall cease to maintain a secondary market in the Certificates,
whichever first occurs, the Bank will deliver to each Underwriter (i)
the annual statements of compliance, (ii) the annual independent
certified public accountants' reports furnished to the Trustee, (iii)
all documents required to be distributed to Certificateholders of the
Trust and (iv) all documents filed with the Commission pursuant to the
Exchange Act or any order of the Commission thereunder, in each case as
provided to the Trustee or filed with the Commission, as soon as such
statements and reports are furnished to the Trustee or filed or, if an
affiliate of the Bank is not the Servicer, as soon thereafter as
practicable.
(h) The Bank will pay all expenses incident to the performance
of its obligations under this Agreement, including without limitation:
(i) expenses of preparing, printing and reproducing each Registration
Statement, the Preliminary Final Prospectus, the Final Prospectus, this
Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement, the Supplement and the Certificates, (ii) the cost of
delivering the Certificates to the Underwriters, (iii) any fees charged
by investment rating agencies for the rating of such Certificates, and
(iv) the reasonable expenses and costs (not to exceed the amount
specified in the applicable Terms Agreement) incurred in connection
with "blue sky" qualification of the Certificates for sale in those
states designated by the Underwriters and the printing of memoranda
relating thereto (it being understood that, except as specified in this
paragraph (h) and in Sections 8 and 9 hereof, the Underwriters will pay
all of their costs and expenses, including the fees of counsel to the
Underwriters, transfer taxes on resale of any Certificates by them and
advertising expenses connected with any offers that they may make).
(i) To the extent, if any, that the rating provided with
respect to the Certificates by the rating agency or agencies that
initially rate the Certificates is conditional upon the furnishing of
documents or the taking of any other actions by the Bank, the Bank
shall furnish such documents and take any such other actions.
(j) The Bank will cause the Trust to make generally available
to Certificateholders and to the Underwriters as soon as practicable an
earnings statement covering a period
9
of at least twelve months beginning with the first fiscal quarter of
the Trust occurring after the effective date of the Initial
Registration Statement (or, if later, the effective date of the
Additional Registration Statement), which shall satisfy the provisions
of Section 11(a) of the Act and Rule 158 of the Commission promulgated
thereunder.
(k) During the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, the Bank will not offer, sell, contract to sell or otherwise
dispose of any credit card asset-backed securities of the Bank which
are substantially similar to the Certificates without the prior written
consent of each Underwriter or unless such securities are referenced in
the Terms Agreement.
Section 6. Representations and Warranties of the Underwriters.
Each Underwriter represents, warrants, covenants and agrees with the Bank that:
(a) It either (A) has not provided any potential investor with
a Collateral Term Sheet (that is required to be filed with the
Commission within two business days of first use under the Terms of the
Public Securities Association Letter as described below), or (B) has,
substantially contemporaneously with its first delivery of such
Collateral Term Sheet to a potential investor, delivered such
Collateral Term Sheet to the Bank, which Collateral Term Sheet, if any,
is attached to this Agreement as Exhibit B.
(b) It either (A) has not provided any potential investor with
a Structural Term Sheet or Computational Materials, or (B) has provided
any such Structural Term Sheet or Computational Materials to the Bank,
which Structural Term Sheets and Computational Materials, if any, are
attached to this Agreement as Exhibit C.
(c) It either (A) has not provided any potential investor with
a Series Term Sheet or (B) has provided any Series Term Sheet to the
Bank, which Series Term Sheets, if any, are attached to this Agreement
as Exhibit D.
(d) Each Collateral Term Sheet bears a legend indicating that
the information contained therein will be superseded by the description
of the collateral contained in the Prospectus Supplement and, except in
the case of the initial Collateral Term Sheet, that such information
supersedes the information in all prior Collateral Term Sheets.
(e) Each Structural Term Sheet and Series Term Sheet and all
Computational Materials bear a legend substantially as follows (or in
such other form as may be agreed prior to the date of this Agreement):
10
This information does not constitute either an offer to sell
or a solicitation of an offer to buy any of the securities
referred to herein. Information contained herein is
confidential and provided for information only, does not
purport to be complete and should not be relied upon in
connection with any decision to purchase the securities. This
information supersedes any prior versions hereof and will be
deemed to be superseded by any subsequent versions including,
with respect to any description of the securities or the
underlying assets, the information contained in the final
Prospectus and accompanying Prospectus Supplement. Offers to
sell and solicitations of offers to buy the securities are
made only by the final Prospectus and the related Prospectus
Supplement.
(f) It (at its own expense) agrees to provide to the Bank any
accountants' letters obtained relating to the Collateral Term Sheets,
Structural Term Sheets and Computational Materials, which accountants'
letters shall be
addressed to the Bank.
(g) It has not, and will not, without the prior written
consent of the Bank, provide any Collateral Term Sheets, Structural
Term Sheets, Series Term Sheets or Computational Materials to any
investor after the date of
this Agreement.
(h) It has only issued or passed on and shall only issue or
pass on in the United Kingdom any document received by it in connection
with the issue of the Certificates to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1996 or who is a person
to whom the document may otherwise lawfully be issued or passed on, it
has complied and shall comply with all applicable provisions of the
Financial Services Xxx 0000 of Great Britain with respect to anything
done by it in relation to the Certificates in, from or otherwise
involving the United Kingdom and if that Underwriter is an authorized
person under the Financial Services Xxx 0000, it has only promoted and
shall only promote (as that term is defined in Regulation 1.02 of the
Financial Services (Promotion of Unregulated Schemes) Regulations 1991)
to any person in the United Kingdom the scheme described in the
Prospectus if that person is of a kind described either in Section
76(2) of the Financial Services Xxx 0000 or in Regulation 1.04 of the
Financial Services (Promotion of Unregulated Schemes) Regulations 1991.
For purposes of this Agreement, "Collateral Term Sheets" and
"Structural Term Sheets" shall have the respective meanings assigned to them in
the February 13, 1995 letter of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on behalf of
the Public Securities Association (which letter, and the SEC staff's
11
response thereto, were publicly available February 17, 1995). The term
"Collateral Term Sheet" as used herein includes any subsequent Collateral Term
Sheet that reflects a substantive change in the information presented.
"Computational Materials" has the meaning assigned to it in the May 17, 1994
letter of Xxxxx & Wood on behalf of Xxxxxx, Xxxxxxx & Co., Inc. (which letter,
and the SEC staff's response thereto, were publicly available May 20, 1994).
"Series Term Sheet" has the meaning assigned to it in the April 4, 1996 letter
of Xxxxxx & Xxxxxxx on behalf of Greenwood Trust Company (which letter, and the
SEC staff's response thereto, were publicly available April 5, 1996).
Section 7. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase and pay for Certificates on the
Closing Date shall be subject to the accuracy of the representations and
warranties of the Bank contained herein, to the accuracy of the statements of
the Bank made in any certificates pursuant to the terms hereof, to the
performance by the Bank of its obligations hereunder and under the applicable
Terms Agreement and to the following additional conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 in the manner and within the applicable
time period prescribed for such filing by the rules and regulations of
the Commission under the Act and in accordance with Section 5(a) of
this Agreement; and, as of the Closing Date, no stop order suspending
the effectiveness of any Registration Statement shall have been issued,
and no proceedings for such purpose shall have been instituted or
threatened by the Commission; and all requests for additional
information from the Commission with respect to any Registration
Statement shall have been complied with to the reasonable satisfaction
of the Representative.
(b) Subsequent to the date 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 which materially impairs the investment quality
of the Certificates; (ii) any suspension or material limitation of
trading of securities generally on the New York Stock Exchange or the
American Stock Exchange; (iii) a declaration of a general moratorium on
commercial banking activities in New York by either Federal or New York
State authorities; or (iv) any material outbreak or declaration of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the
judgment of the Representative, impracticable to market the
Certificates on the terms specified herein and the applicable Terms
Agreement.
(c) The Underwriters have received a certificate of a Vice
President or other proper officer of the Bank, dated the Closing Date,
in which such officer, to the best of his
12
knowledge, shall state that (i) the representations and warranties of
the Bank in this Agreement are true and correct in all material
respects, (ii) the Bank has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
the Closing Date, (iii) no stop order suspending the effectiveness of a
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are threatened by the Commission and
(iv) the Final 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 the
light of the circumstances under which they were made, not misleading.
(d) The Bank shall have furnished to the Underwriters the
opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Bank, dated the
Closing Date, in substantially the forms attached hereto as Exhibits 1
through 3, with only such changes as shall be reasonably satisfactory
to the Representative.
(e) The Underwriters shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, one or more
opinions, each dated the Closing Date, with respect to the validity of
the Certificates, the Initial Registration Statement, the Additional
Registration Statement (if any), the Final Prospectus, certain matters
of the Uniform Commercial Code, as adopted in the State of Delaware,
and such other related matters as the Representative may reasonably
require, and the Bank shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass on
such matters.
(f) At the date of the applicable Terms Agreement and at the
Closing Date, Price Waterhouse LLP (or such other independent public
accountants as shall be named in the applicable Terms Agreement),
certified independent public accountants for the Bank, shall have
furnished to the Underwriters a letter or letters, dated respectively
as of the date of the applicable Terms Agreement and as of the Closing
Date confirming that they are certified independent public accountants
within the meaning of the Act and the Exchange Act, and the respective
applicable published rules and regulations thereunder and substantially
in the form heretofore agreed and otherwise in form and in substance
satisfactory to the Representative and counsel for the Underwriters.
(g) The Underwriters shall receive evidence satisfactory to it
that, on or before the Closing Date, UCC-1 financing statements have
been or are being filed in the office of the Secretary of State of the
State of
13
Delaware, reflecting the interest of the Trustee in the Receivables and
the proceeds thereof.
(h) The Underwriters shall have received from Xxxxx, Xxxxxx &
Xxxxxx, LLP, counsel to the Trustee, an opinion, dated the Closing
Date, to the effect that:
(i) The Trustee has been duly organized and is
validly existing as a banking corporation under the laws of
New York and has the corporate power and authority to conduct
business and affairs as a trustee.
(ii) The Trustee has the corporate power and
authority to perform the duties and obligations of trustee
under, and to accept the trust contemplated by, the Pooling
and Servicing Agreement, the Supplement and the Credit
Enhancement Agreement.
(iii) Each of the Pooling and Servicing Agreement,
the Supplement and the Credit Enhancement Agreement has been
duly authorized, executed, and delivered by the Trustee and
constitutes a legal, valid and binding obligation of the
Trustee enforceable against the Trustee in accordance with its
terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law).
(iv) The Certificates have been duly executed and
authenticated by the Trustee.
(v) Neither the execution nor the delivery by the
Trustee of the Pooling and Servicing Agreement, the Supplement
and the Credit Enhancement Agreement nor the consummation of
any of the transactions contemplated thereby require the
consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with
respect to, any governmental authority or agency under any
existing federal or state law governing the banking or trust
powers of the Trustee.
(vi) The execution and delivery of the Pooling and
Servicing Agreement, the Supplement and the Credit Enhancement
Agreement by the Trustee and the performance by the Trustee of
their respective terms do not conflict with or result in a
violation of (x) any law or regulation of any governmental
authority or agency under any existing federal or state law
governing the banking or trust powers of the Trustee, or (y)
the Certificate of Incorporation or By-laws of the Trustee.
14
(i) The Underwriters shall be named as recipients or shall
have received reliance letters, if applicable, with respect to any
opinions delivered to the Bank by counsel of the Credit Enhancement
Provider, if any.
(j) The Underwriters shall have received evidence satisfactory
to them that the Certificates shall be rated in accordance with the
applicable Terms Agreement by the Rating Agency.
(k) The Underwriters shall have received a certificate of a
Vice President or other proper officer of the Servicer, dated the
Closing Date, in which such officer, to the best of his or her
knowledge, shall state that the representations and warranties of the
Servicer in the Pooling and Servicing Agreement and the Supplement are
true and correct.
(l) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall
be reasonably satisfactory in form and substance to the Underwriters
and counsel for the Underwriters in all material respects and the
Underwriters and counsel for the Underwriters shall have received such
information, certificates and documents as the Underwriters or counsel
for the Underwriters may reasonably request.
If any of the conditions specified in this Section 7 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and their counsel, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Bank in writing or by telephone or facsimile
confirmed in writing.
Section 8. Reimbursement of Underwriters' Expenses. If the
sale of the Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 7 (other
than the condition set forth in paragraph (b) of Section 7) is not satisfied, or
because of any refusal, inability or failure on the part of the Bank to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by the Underwriters, the Bank will reimburse the Underwriter for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by it in connection with the proposed purchase and
sale of the Certificates and upon demand the Bank shall pay the full amount
thereof to the Representative.
15
Section 9. Indemnification and Contribution. (a) The Bank
agrees to indemnify and hold harmless the Underwriters, each of the directors
thereof, each of the officers who are involved in the Offering and each person,
if any, who controls each Underwriter within the meaning of the Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or any other
federal or state statutory law or regulation, at common law 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 a material fact contained in any Registration Statement as
originally filed or in any amendment thereof, or in any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof 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 agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by it in
connection with investigating or preparing to defend or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that (i) the Bank will 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
any such untrue statement or alleged untrue statement or omission or alleged
omission made in any of such documents in reliance upon and in conformity with
written information furnished to the Bank by or on behalf of the Underwriters
specifically for use therein, and (ii) such indemnity with respect to any
Preliminary Final Prospectus shall not inure to any benefit of any Underwriter
(or any person controlling any of the Underwriters) from whom the person
asserting any such loss, claim, damage or liability purchased the Certificate
thereof if such person did not receive a copy of the Final Prospectus (or the
Final 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 Final Prospectus was corrected in the Final Prospectus (or the
Final Prospectus as supplemented). This indemnity agreement will be in addition
to any liability which the Bank may otherwise have.
(b) Each Underwriter agrees to indemnify and hold harmless the
Bank, each of the directors thereof, each of the officers who signs a
Registration Statement, and each person who controls the Bank within the meaning
of the Act, to the same extent as the foregoing indemnities from the Bank to the
Underwriters, but only with reference to written information furnished to the
Bank by or on behalf of each Underwriter specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which each Underwriter may
otherwise have.
16
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 9 unless the indemnifying party is materially
prejudiced thereby. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this Section 9 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Underwriter(s) being indemnified in the case of paragraph (a) of this Section 9,
representing the indemnified parties under such paragraph (a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If recovery is not available or is insufficient under the
foregoing indemnification provisions of this Section 9, for any reason other
than as specified herein, the parties entitled to indemnification by the terms
hereof shall be entitled to contribution to liabilities and expenses, except to
the extent that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the Bank and the Underwriter are
entitled, there shall be considered the relative benefits received by each from
the offering of the Certificates (taking into account the total proceeds of the
offering received by the Bank and the total underwriting
17
discounts and commissions received by the Underwriters), their relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Bank and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation. None of the Underwriters nor any person controlling any
Underwriter shall be obligated to make contribution hereunder which in the
aggregate exceeds the total public offering price of the Certificates purchased
by such Underwriter under this Agreement, less the aggregate amount of any
damages which any Underwriter and its controlling persons have otherwise been
required to pay in respect of the same claim or any substantially similar claim.
Section 10. Default by an Underwriter. If, on the Closing
Date, any Underwriter or Underwriters default in the performance of its or their
obligations under this Agreement, the Representative may make arrangements for
the purchase of such Certificates by other persons satisfactory to the Bank and
the Representative, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, then each remaining non-defaulting
Underwriter shall be severally obligated to purchase the Certificates which the
defaulting Underwriter or Underwriters agreed but failed to purchase on the
Closing Date in the respective proportions which the principal amount of
Certificates set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule I to the Terms Agreement bears to the aggregate
principal amount of Certificates set forth opposite the names of all the
remaining non-defaulting Underwriters in Schedule I to the Terms Agreement;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Certificates on the Closing Date if the
aggregate principal amount of Certificates which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds one-eleventh of
the aggregate principal amount of the Certificates to be purchased on the
Closing Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase in total more than 110% of the principal amount of the
Certificates which it agreed to purchase on the Closing Date pursuant to the
terms of Section 2. If the foregoing maximums are exceeded and the remaining
Underwriters or other underwriters satisfactory to the Representative and the
Bank do not elect to purchase the Certificates which the defaulting Underwriter
or Underwriters agreed but failed to purchase, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Bank,
except that the provisions of Section 11 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context otherwise requires, any party not
listed in Schedule I to the Terms Agreement who, pursuant to this Section 10,
purchases Certificates which a defaulting Underwriter agreed but failed to
purchase.
18
Section 11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Bank and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
you or the Bank or any of the officers, directors or controlling persons
referred to in Section 9 hereof, and will survive delivery of and payment for
the Certificates. The provisions of Sections 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
Section 12. Notices. All communication hereunder shall be in
writing and, if sent to the Underwriters will be mailed, delivered or telecopied
and confirmed to them at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxxxx Xx., Telecopy No: (000) 000-0000; if sent to the Bank, will be
mailed, delivered or telecopied and confirmed to them care of Chase Manhattan
Bank USA, National Association, at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx,
00000, Telecopy No.: (000) 000-0000, Attention: Xxxxx Xxxxxx, Vice President.
Section 13. Miscellaneous. This Agreement is to be governed
by, and construed in accordance with, the laws of the State of New York; it may
be executed in two or more counterparts, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one
and the same instrument. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns and
the officers and directors and controlling persons referred to in Section 9
hereof, and no other person shall have any right or obligation hereunder. This
Agreement supersedes all prior agreements and understandings between the parties
relating to the subject matter hereof, other than those contained in the Terms
Agreement executed in connection herewith. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
Section 14. Effectiveness. This Agreement shall become
effective upon execution and delivery of the applicable Terms Agreement.
If you are in agreement with the foregoing, please sign the
counterpart hereof and return it to the Bank, whereupon this letter and your
acceptance shall become a binding agreement among the Bank and the Underwriters.
Very truly yours,
CHASE MANHATTAN BANK USA,
19
NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
CHASE SECURITIES INC.
as representative of the
Underwriters named in
Schedule I hereto
By /s/ Xxxxxxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
20
CHASE CREDIT CARD MASTER TRUST
CLASS A FLOATING RATE ASSET BACKED CERTIFICATES, SERIES 1998-5
CLASS B FLOATING RATE ASSET BACKED CERTIFICATES, SERIES 1998-5
TERMS AGREEMENT
Dated: September 17, 1998
To: Chase Manhattan Bank USA, National Association
Re: Underwriting Agreement dated September 17, 1998
Series Designation: Series 1998-5
Underwriters:
The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the purposes of the
above-referenced Underwriting Agreement as such Underwriting Agreement is
incorporated herein and made a part hereof.
Terms of the Certificates:
Initial Interest Rate
Class Invested Amount or Formula Price to Public (1)
----- --------------- ------------- -------------------
Class A $650,000,000 LIBOR + 0.16% 100.000%
Class B $ 54,166,000 LIBOR + 0.36% 100.000%
(1) Plus accrued interest at the applicable rate from September 24, 1998.
Distribution Dates: Class A: the 15th day of each month (or if such 15th day is
not a business day the next succeeding business day), commencing November 16,
1998.
Class B: the 15th calendar day (or if such 15th day is not a business day, the
next succeeding business day) of each month, commencing November 16, 1998.
Certificate Ratings:
Class A: AAA by Standard & Poor's
Aaa by Xxxxx'x
AAA by Fitch
Class B: A by Standard & Poor's
A2 by Xxxxx'x
A by Fitch
A-1
Credit Enhancement Provider: Bayerische Hypo-Und Vereinsbank
Trustee: The Bank of New York
Pooling and Servicing Agreement: The Second Amended and Restated Pooling and
Servicing Agreement, dated as of September 1, 1996, between Chase Manhattan Bank
USA, National Association, as Transferor on and after June 1, 1996, The Chase
Manhattan Bank, as Transferor prior to June 1, 1996 and as Servicer, and The
Bank of New York, as Trustee, on behalf of the Certificateholders of Chase
Credit Card Master Trust.
Supplement: Series 1998-5 Supplement, dated as of September 24, 1998, between
Chase Manhattan Bank USA, National Association, as Transferor on and after June
1, 1996, The Chase Manhattan Bank, as Transferor prior to June 1, 1996 and as
Servicer, and The Bank of New York, as Trustee, on behalf of the Series 1998-5
Certificateholders
Purchase Price:
The purchase price payable by the Underwriters for the
Certificates covered by this Agreement will be the following percentage of the
principal amounts to be issued:
Per Class A Certificate: 99.725%
Per Class B Certificate: 99.700%
Registration Statement: Registration No. 333-43173
Underwriting Commissions, Concessions and Discounts:
The Underwriter's discounts and commissions, the concessions
that the Underwriter may allow to certain dealers, and the discounts that such
dealers may reallow to certain other dealers, each expressed as a percentage of
the principal amount of the Class A Certificates and Class B Certificates, shall
be as follows:
Underwriting
Discounts Selling
Class and Concessions Concessions Reallowance
----- ---------------- ----------- -----------
Class A .275% .175% .150%
Class B .300% .200% .150%
Closing Date: September 24, 1998, 10:00 a.m., New York Time
Location of Closing: Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000
Payment for the Certificates: Wire transfer of same day funds
Blue Sky Fees: Up to $25,000
A-2
Opinion Modifications: None
Other securities being offered concurrently: None.
A-3
The Underwriters agree, severally and not jointly, subject to
the terms and provisions of the above referenced Underwriting Agreement which is
incorporated herein in its entirety and made a part hereof, to purchase the
respective principal amounts of the above referenced Series of Certificates set
forth opposite their names on Schedule I hereto.
CHASE SECURITIES INC.
As Representative of
the Underwriters named
in Schedule I hereto
By: /s/ Xxxxxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
Accepted:
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
A-4
SCHEDULE I
UNDERWRITERS
$650,000,000 Principal Amount of Class A Floating Rate Asset Backed
Certificates, Series 1998-5
Principal Amount
----------------
Chase Securities Inc. $162,500,000
Bear Xxxxxxx & Co. Inc. $162,500,000
Credit Suisse First Boston
Corporation $162,500,000
Prudential Securities
Incorporated $162,500,000
-------------
Total $650,000,000
-------------
-------------
$54,166,000 Principal Amount of Class B Floating Rate Asset Backed Certificates,
Series 1998-5
Principal Amount
----------------
Chase Securities Inc. $54,166,000
A-5
