EXHIBIT 4.1
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)
February 26, 1999
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 Floating 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
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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
MasterCard(Registered) and VISA(Registered) 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.
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February 26, 1999
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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 (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
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February 26, 1999
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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
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February 26, 1999
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such time, will be included therein. Any preliminary form of the Prospectus
Supplement which has heretofore been filed 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
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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 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)
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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 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 By-laws
of the Bank except for any such breaches or violations
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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.
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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 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
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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 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
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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 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
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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.
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(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 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 X.
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(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):
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.
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(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
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
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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
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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 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.
Chase Securities Inc.
February 26, 1999
Page 18
(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
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
Chase Securities Inc.
February 26, 1999
Page 19
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.
(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
Chase Securities Inc.
February 26, 1999
Page 20
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. Section 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
Chase Securities Inc.
February 26, 1999
Page 21
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.
Section 9. (a) Section Indemnification and Contribution. 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 Certificates which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the
Chase Securities Inc.
February 26, 1999
Page 22
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.
(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
Chase Securities Inc.
February 26, 1999
Page 23
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 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
Chase Securities Inc.
February 26, 1999
Page 24
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
Chase Securities Inc.
February 26, 1999
Page 25
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.
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. Secondary Trust or Special Purpose Vehicle.
Each Underwriter severally represents that it will not, at any time that such
Underwriter is acting as an "underwriter" (as defined in Section 2(11) of the
Act) with respect to the Certificates, transfer, deposit or otherwise convey
any Certificates into a trust or other type of special purpose vehicle that
issues securities or other instruments backed in whole or in part by, or that
represents interests in, such Certificates without the prior written consent
of the Bank.
Chase Securities Inc.
February 26, 1999
Page 26
Section 14. 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 15. 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,
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
EXHIBIT A TO EXHIBIT 4.1
CHASE CREDIT CARD MASTER TRUST
CLASS A FLOATING RATE ASSET BACKED CERTIFICATES, SERIES 1999-1
CLASS B FLOATING RATE ASSET BACKED CERTIFICATES, SERIES 1999-1
TERMS AGREEMENT
Dated: February 26, 1999
To: Chase Manhattan Bank USA, National Association
Re: Underwriting Agreement dated February 26, 1999
Series Designation: Series 1999-1
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 Invested Interest Rate Price to
Class Amount or Formula Public (1)
----- ---------------- ------------- ----------
Class A $750,000,000 LIBOR + 0.16% 100.000%
Class B $ 62,500,000 LIBOR + 0.39% 100.000%
(1) Plus accrued interest at the applicable rate from March 4, 1999.
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 April 15,
1999.
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 April 15, 1999.
Certificate Ratings:
Class A: AAA by Standard & Poor's
Aaa by Xxxxx'x
AAA by Fitch
A-1
Class B: A by Standard & Poor's
A2 by Xxxxx'x
A by Fitch
Credit Enhancement Provider: Westdeutsche Landesbank Girozentrale, New York
Branch
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, as amended, 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 1999-1 Supplement, dated as of March 4, 1999, 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 1999-1
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: 99.750%
Per Class B Certificate: 99.725%
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 .250% .150% .125%
Class B .275% .165% .125%
A-2
Closing Date: March 4, 1999, 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
Opinion Modifications: None
Other securities being offered concurrently: None.
Expenses: Notwithstanding Section 5(h) of the Underwriting Agreement, the
Underwriters have agreed to reimburse the Bank for expenses associated with
preparing and printing the Final Prospectus.
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:__________________
Name:
Title:
Accepted:
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
By:__________________
Name:
Title:
SCHEDULE I TO EXHIBIT A TO EXHIBIT 4.1
UNDERWRITERS
$750,000,000 Principal Amount of Class A Floating Rate Asset Backed
Certificates, Series 1999-1
Principal Amount
----------------
Chase Securities Inc. $450,000,000
Barclays Capital, Inc. $60,000,000
First Chicago Capital Markets, Inc. $60,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $60,000,000
Xxxxxx Xxxxxxx & Co. Incorporated $60,000,000
Xxxxxxx Xxxxx Barney Inc. $60,000,000
------------
Total $750,000,000
============
$62,500,000 Principal Amount of Class B Floating Rate Asset Backed
Certificates, Series 1999-1
Principal Amount
----------------
Chase Securities Inc. $62,500,000
