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)
July 9, 1999
Chase Securities Inc.
As Underwriter
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
applicable Terms Agreement (the "Trustee"), as supplemented by the Series
Supplement having the date stated in the applicable Terms Agreement,
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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 underwriter listed on
Schedule I to the applicable Terms Agreement (the "Underwriter"). Certificates
of any Series sold to the Underwriter shall be sold pursuant to a Terms
Agreement by and between the Bank and the Underwriter, 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 and VISA revolving credit card
accounts of the Bank (the "Receivables"), and the benefit of the Credit
Enhance-
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ment, 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 Underwriter 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
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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 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
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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
Underwriter. 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 Underwriter shall agree in writing to a modification,
the Final Prospectus shall be in all substantial respects in the form
furnished to the Underwriter 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
Underwriter, prior to such time, will be included therein. Any
preliminary form of the Prospectus
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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
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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 Underwriter
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
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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 Underwriter 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
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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 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;
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(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 Underwriter, and the
Underwriter agrees to purchase from the Bank, the principal amount of
Certificates set forth opposite the 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.
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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 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
Underwriter 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 Underwriter
of the Certificates registered in the name of Cede & Co. as nominee of The
Depository Trust Company and in such denominations as the Underwriter 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
Underwriter in New York, New York not later than one full Business Day prior to
the Closing Date.
Section 4. Offering by Underwriter. It is understood that the
Underwriter proposes to offer the Certificates for sale
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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 Underwriter 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 Underwriter, 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 Underwriter of such timely filing. In addition, to
the extent that the Underwriter (i) has provided to the Bank
Collateral Term Sheets (as defined below) that the Underwriter has
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 Underwriter has 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
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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 Underwriter copies of the proposed
amendment or supplement for review and will not file any such proposed
amendment or supplement to which the Underwriter reasonably objects.
(c) During the prospectus delivery period, the Bank will
advise the Underwriter 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
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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 Underwriter 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 the 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 the Underwriter may reasonably request.
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(g) For a period from the date of this Agreement until the
retirement of the Certificates, or until such time as the Underwriter
shall cease to maintain a secondary market in the Certificates,
whichever first occurs, the Bank will deliver to the 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 Underwriter
and the printing of memoranda relating thereto (it being understood
that, except as speci-
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fied 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 Underwriter, 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 Underwriter 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.
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Section 6. Representations and Warranties of the Underwriter.
The 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
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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 the 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
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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 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 Underwriter.
The obligations of the Underwriter 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
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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 Underwriter.
(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 Underwriter, impracticable to market the Certificates
on the terms specified herein and the applicable Terms Agreement.
(c) The Underwriter has 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
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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 Underwriter 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 Underwriter.
(e) The Underwriter shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriter, 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 Underwriter 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
Chase Securities Inc.
July 9, 1999
Page 23
applicable Terms Agreement), certified independent public accountants
for the Bank, shall have furnished to the Underwriter 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
Underwriter and counsel for the Underwriter.
(g) The Underwriter 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 Underwriter 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,
Chase Securities Inc.
July 9, 1999
Page 24
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
Chase Securities Inc.
July 9, 1999
Page 25
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 Underwriter shall be named as a recipient 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 Underwriter shall have received evidence satisfactory
to it that the Certificates shall be rated in accordance with the
applicable Terms Agreement by the Rating Agency.
(k) The Underwriter 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 Underwriter
and counsel for the Underwriter in all material respects and the
Underwriter and counsel for the Underwriter shall have received such
information, cer-
Chase Securities Inc.
July 9, 1999
Page 26
tificates and documents as the Underwriter or counsel for the
Underwriter 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 Underwriter and its counsel, this Agreement and all
obligations of the Underwriter hereunder may be cancelled at, or at any time
prior to, the Closing Date by the Underwriter. Notice of such cancellation
shall be given to the Bank in writing or by telephone or facsimile confirmed in
writing.
Section 8. Reimbursement of Underwriter's Expenses. If the
sale of the Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriter 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 Underwriter, 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 Underwriter.
Chase Securities Inc.
July 9, 1999
Page 27
Section 9. Indemnification and Contribution. (a) The Bank
agrees to indemnify and hold harmless the Underwriter, 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 Underwriter specifically for use therein, and (ii) such indemnity with
respect to any Preliminary Final Prospectus shall not inure to any benefit of
the Underwriter (or any person controlling the
Chase Securities Inc.
July 9, 1999
Page 28
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Certificates which are the subject thereof if such
person did not receive a copy of the 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) The 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 Underwriter, but only with reference to written information
furnished to the Bank by or on behalf of the 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 the
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
Chase Securities Inc.
July 9, 1999
Page 29
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
Chase Securities Inc.
July 9, 1999
Page 30
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 Underwriter), 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 Underwriter agree that it would not be equitable if the amount of
such contribution were determined by pro rata or per capita allocation. Neither
the Underwriter nor any person controlling the 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 the Underwriter and
its controlling persons have otherwise been required to pay in respect of the
same claim or any substantially similar claim.
Chase Securities Inc.
July 9, 1999
Page 31
Section 10. [Intentionally Omitted]
Section 11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Bank and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
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 Underwriter will be mailed, delivered or telecopied
and confirmed to it 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. The
Underwriter represents that it will not, at any time that the 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
Chase Securities Inc.
July 9, 1999
Page 32
that represents interests in, such Certificates without the prior written
consent of the Bank.
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 between the Bank and the
Underwriter.
Very truly yours,
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By /s/ Xxxxxxxx Xxxxxx
----------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
CHASE SECURITIES INC.
By /s/ Xxxxx X. Xxxxxx Xx.
--------------------------
Name: Xxxxx X. Xxxxxx Xx.
Title: Managing Director
Exhibit A to Exhibit 4.1
CHASE CREDIT CARD MASTER TRUST
CLASS A FLOATING RATE ASSET BACKED CERTIFICATES, SERIES 1999-2
CLASS B FLOATING RATE ASSET BACKED CERTIFICATES, SERIES 1999-2
TERMS AGREEMENT
Dated: July 9, 1999
To: Chase Manhattan Bank USA, National Association
Re: Underwriting Agreement dated July 9, 1999
Series Designation: Series 1999-2
Underwriter:
Chase Securities Inc. is the "Underwriter" 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
Class Amount or Formula Price to Public (1)
----- ---------------- -------------- -------------------
Class A $500,000,000 LIBOR + 0.140% 100.000%
Class B $ 41,666,000 LIBOR + 0.360% 100.000%
(1) Plus accrued interest at the applicable rate from July 15, 1999.
A-1
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 August 16,
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 August 16, 1999.
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
Credit Enhancement Provider: Barclays Bank PLC
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 1999-2 Supplement, dated as of July 15, 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 1999-2
Certificateholders.
Purchase Price:
The purchase price payable by the Underwriter for the
Certificates covered by this Agreement will be the following percentage of the
principal amounts to be issued:
A-2
Per Class A Certificate: 99.775%
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 .225% .150% .125%
Class B .275% .165% .125%
Closing Date: July 15, 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
A-3
Opinion Modifications: None
Other securities being offered concurrently: None.
A-4
The Underwriter agrees, 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 principal amounts of the above
referenced Series of Certificates set forth opposite its name on Schedule I
hereto.
CHASE SECURITIES INC.
By:__________________
Name:
Title:
Accepted:
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
By:__________________
Name:
Title:
SCHEDULE I TO EXHIBIT 4.1
UNDERWRITER
$500,000,000 Principal Amount of Class A Floating Rate Asset Backed
Certificates, Series 1999-2
Principal Amount
----------------
Chase Securities Inc. $500,000,000
$41,666,000 Principal Amount of Class B Floating Rate Asset Backed
Certificates, Series 1999-2
Principal Amount
----------------
Chase Securities Inc. $41,666,000
