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)
November 13, 1998
Chase Securities Inc.
As Underwriter and as
Representative of the
several Underwriters
named in the
Terms Agreement
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Chase Manhattan Bank USA, National Association (the "Bank"),
proposes to cause the Chase Credit Card Master Trust (formerly known as
Chemical Master Credit Card Trust I) (the "Trust") to issue the Fixed Rate
Asset Backed Certificates designated in the applicable Terms Agreement (as
hereinafter defined) (the "Certificates"). The Certificates will be issued
pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") described in the applicable Terms Agreement between the Bank, as
Transferor on and after June 1, 1996, The Chase Manhattan Bank, as
Transferor prior to June 1, 1996 and as Servicer (the "Servicer"), and the
trustee identified in the applicable Terms Agreement (the "Trustee"), as
supplemented by the Series Supplement having the date stated in the
applicable
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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.
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:
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(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 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
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November 13, 1998
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the Certificates will have been duly registered under the Act
pursuant to the Initial Registration Statement and such Additional
Registration Statement. If the Bank does not propose to amend the
Initial Registration Statement or, if an Additional Registration
Statement has been filed and the Bank does not propose to amend it
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution
and delivery of the applicable Terms Agreement, the most recent
amendment (if any) to each such registration statement has been
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) under the Act or, in the case of any
Additional Registration Statement, Rule 462(b). The Initial
Registration Statement and any Additional Registration Statement
are hereinafter referred to collectively as the "Registration
Statements" and individually as a "Registration Statement." Copies
of the Registration Statements, together with any post-effective
amendments have been furnished to the Underwriters. The Bank
proposes to file with the Commission pursuant to Rule 424 ("Rule
424") under the Act a supplement (the "Prospectus Supplement") to
the form of prospectus included in a Registration Statement (such
prospectus, in the form it appears in a Registration Statement or
in the form most recently revised and filed with the Commission
pursuant to Rule 424 is hereinafter referred to as the "Basic
Prospectus") relating to the Certificates and the plan of
distribution thereof. The Basic Prospectus and the Prospectus
Supplement, together with any amendment thereof or supplement
thereto, is hereinafter referred to as the "Final Prospectus."
Except to the extent that the Underwriters shall agree in writing
to a modification, the Final Prospectus shall be in all substantial
respects in the form furnished to the Underwriters prior to the
execution of the relevant Terms Agreement, or to the extent not
completed at such time, shall contain only such material changes as
the Bank has advised the Underwriters, prior to such time, will be
included therein. Any preliminary form of the Prospectus Supplement
which has heretofore been filed pursuant to Rule 424 is hereinafter
called a "Preliminary Final Prospectus;"
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(b) The Initial Registration Statement, including such
amendments thereto as may have been required on the date of the
applicable Terms Agreement, and the Additional Registration
Statement (if any), relating to the Certificates, have been filed
with the Commission and such Initial Registration Statement as
amended, and the Additional Registration Statement (if any), have
become effective. No stop order suspending the effectiveness of the
Initial Registration Statement or the Additional Registration
Statement (if any) has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Bank,
threatened by the Commission;
(c) The Initial Registration Statement conforms, and any
amendments or supplements thereto and the Final Prospectus will
conform, in all material respects to the requirements of the Act,
and do not and will not, as of the applicable effective date as to
the Initial Registration Statement and any amendment thereto, as of
the applicable filing date as to the Final Prospectus and any
supplement thereto, and as of the Closing Date, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Additional Registration Statement
(if any) and the Initial Registration Statement conform, in all
material respects to the requirements of the Act, and do not and
will not, as of the applicable effective date as to the Additional
Registration Statement, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall
apply only during the period that a prospectus relating to the
Certificates is required to be delivered under the Act by dealers
in connection with the initial public offering of such Certificates
(such period being hereinafter sometimes referred to as the
"prospectus delivery period"); provided, further, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Bank
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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) 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
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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 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 Underwriters, and the Underwriters
agree to purchase from the Bank, the principal amount of Certificates set
forth opposite each Underwriter's name in Schedule I to the applicable Terms
Agreement. The purchase price for the Certificates shall be as set forth in
the applicable Terms Agreement.
The Bank acknowledges and agrees that Chase Securities Inc. may
sell Certificates to any of its affiliates, and that any such affiliates may
sell such Certificates to Chase Securities Inc.
Section 3. Delivery and Payment. Unless otherwise provided in the
applicable Terms Agreement, payment for Certificates shall be made to the
Bank or to its order by wire transfer of same day funds at the offices of
Simpson Thacher & Bartlett in New York, New York at 10:00 A.M., New York
City time,
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on the Closing Date (as hereinafter defined) specified in the Terms
Agreement, or at such other time on the same or such other date as the
Underwriters and the Bank may agree upon. The time and date of such payment
for the Certificates as specified in the applicable Terms Agreement are
referred to herein as the "Closing Date." As used herein, the term "Business
Day" means any day other than a day on which banks are permitted or required
to be closed in New York City.
Unless otherwise provided in the applicable Terms Agreement,
payment for the Certificates shall be made against delivery to the
Underwriters of the Certificates registered in the name of Cede & Co. as
nominee of The Depository Trust Company and in such denominations as the
Underwriters shall request in writing not later than two full Business Days
prior to the Closing Date. The Bank shall make the Certificates available
for inspection by the Underwriters in New York, New York not later than one
full Business Day prior to the Closing Date.
Section 4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Certificates for sale to the public, which
may include selected dealers, as set forth in the Final Prospectus.
Section 5. Covenants of the Bank. The Bank covenants and agrees
with the Underwriters that upon the execution of the applicable Terms
Agreement:
(a) Promptly following the execution of such applicable
Terms Agreement, the Bank will prepare a Prospectus Supplement
setting forth the amount of Certificates covered thereby and the
terms thereof not otherwise specified in the Basic Prospectus, the
price at which such Certificates are to be purchased by the
Underwriters, the initial public offering price, the selling
concessions and allowances, and such other information as the Bank
deems appropriate. The Bank will file such Prospectus Supplement
with the Commission pursuant to Rule 424 within the time prescribed
therein and will provide evidence satisfactory to the Underwriters
of such timely filing. In addition, to the extent that the
Underwriters
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(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 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.
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(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 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
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pursuant to the Exchange Act or any order of the Commission
thereunder, in each case as provided to the Trustee or filed with
the Commission, as soon as such statements and reports are
furnished to the Trustee or filed or, if an affiliate of the Bank
is not the Servicer, as soon thereafter as practicable.
(h) The Bank will pay all expenses incident to the
performance of its obligations under this Agreement, including
without limitation: (i) expenses of preparing, printing and
reproducing each Registration Statement, the Preliminary Final
Prospectus, the Final Prospectus, this Agreement, the applicable
Terms Agreement, the Pooling and Servicing Agreement, the
Supplement and the Certificates, (ii) the cost of delivering the
Certificates to the Underwriters, (iii) any fees charged by
investment rating agencies for the rating of such Certificates, and
(iv) the reasonable expenses and costs (not to exceed the amount
specified in the applicable Terms Agreement) incurred in connection
with "blue sky" qualification of the Certificates for sale in those
states designated by the Underwriters and the printing of memoranda
relating thereto (it being understood that, except as specified in
this paragraph (h) and in Sections 8 and 9 hereof, the Underwriters
will pay all of their costs and expenses, including the fees of
counsel to the Underwriters, transfer taxes on resale of any
Certificates by them and advertising expenses connected with any
offers that they may make).
(i) To the extent, if any, that the rating provided with
respect to the Certificates by the rating agency or agencies that
initially rate the Certificates is conditional upon the furnishing
of documents or the taking of any other actions by the Bank, the
Bank shall furnish such documents and take any such other actions.
(j) The Bank will cause the Trust to make generally
available to Certificateholders and to the Underwriters as soon as
practicable an earnings statement covering a period of at least
twelve months beginning with the first fiscal quarter of the Trust
occurring after the effective date of
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November 13, 1998
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the Initial Registration Statement (or, if later, the effective
date of the Additional Registration Statement), which shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 of the
Commission promulgated thereunder.
(k) During the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, the Bank will not offer, sell, contract to sell or otherwise
dispose of any credit card asset-backed securities of the Bank
which are substantially similar to the Certificates without the
prior written consent of each Underwriter or unless such securities
are referenced in the Terms Agreement.
Section 6. Representations and Warranties of the Underwriters. Each
Underwriter represents, warrants, covenants and agrees with the Bank that:
(a) It either (A) has not provided any potential investor
with a Collateral Term Sheet (that is required to be filed with the
Commission within two business days of first use under the Terms of
the Public Securities Association Letter as described below), or
(B) has, substantially contemporaneously with its first delivery of
such Collateral Term Sheet to a potential investor, delivered such
Collateral Term Sheet to the Bank, which Collateral Term Sheet, if
any, is attached to this Agreement as Exhibit B.
(b) It either (A) has not provided any potential investor
with a Structural Term Sheet or Computational Materials, or (B) has
provided any such Structural Term Sheet or Computational Materials
to the Bank, which Structural Term Sheets and Computational
Materials, if any, are attached to this Agreement as Exhibit C.
(c) It either (A) has not provided any potential investor
with a Series Term Sheet or (B) has provided any Series Term Sheet
to the Bank, which Series Term Sheets, if any, are attached to this
Agreement as Exhibit D.
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(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.
(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
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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 Act
1986 (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 Act 1986 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
Act 1986, 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 Act 1986 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, Steen & Hamilton 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 Brown & Wood on behalf of Kidder, Peabody & 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 Latham & Watkins on behalf of Greenwood Trust
Company (which letter, and the SEC staff's response thereto, were publicly
available April 5, 1996).
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Section 7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for Certificates on the
Closing Date shall be subject to the accuracy of the representations and
warranties of the Bank contained herein, to the accuracy of the statements
of the Bank made in any certificates pursuant to the terms hereof, to the
performance by the Bank of its obligations hereunder and under the
applicable Terms Agreement and to the following additional conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 in the manner and within the
applicable time period prescribed for such filing by the rules and
regulations of the Commission under the Act and in accordance with
Section 5(a) of this Agreement; and, as of the Closing Date, no
stop order suspending the effectiveness of any Registration
Statement shall have been issued, and no proceedings for such
purpose shall have been instituted or threatened by the Commission;
and all requests for additional information from the Commission
with respect to any Registration Statement shall have been complied
with to the reasonable satisfaction of the Representative.
(b) Subsequent to the date of this Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Bank which materially impairs the investment
quality of the Certificates; (ii) any suspension or material
limitation of trading of securities generally on the New York Stock
Exchange or the American Stock Exchange; (iii) a declaration of a
general moratorium on commercial banking activities in New York by
either Federal or New York State authorities; or (iv) any material
outbreak or declaration of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States
is such as to make it, in the judgment of the Representative,
impracticable to market the Certificates on the terms specified
herein and the applicable Terms Agreement.
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(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 Simpson Thacher & Bartlett, 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, Meagher & Flom LLP, counsel for the Underwriters, one
or more opinions, each dated the Closing Date, with respect to the
validity of the Certificates, the Initial Registration Statement,
the Additional Registration Statement (if any), the Final
Prospectus, certain matters of the Uniform Commercial Code, as
adopted in the State of Delaware, and such other related matters as
the Representative may reasonably require, and the Bank shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at
the Closing Date, Price Waterhouse LLP (or such other independent
public accountants as shall be named in the
Chase Securities Inc.
November 13, 1998
Page 18
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 Emmet,
Marvin & Martin, LLP, counsel to the Trustee, an opinion, dated the
Closing Date, to the effect that:
(i) The Trustee has been duly organized and is
validly existing as a banking corporation under the laws
of New York and has the corporate power and authority to
conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and
authority to perform the duties and obligations of trustee
under, and to accept the trust contemplated by, the
Pooling and Servicing Agreement, the Supplement and the
Credit Enhancement Agreement.
(iii) Each of the Pooling and Servicing
Agreement, the Supplement and the Credit Enhancement
Agreement has been duly authorized, executed, and
delivered by the Trustee and constitutes a legal, valid
and binding obligation of the Trustee enforceable against
the Trustee in accordance with its terms, subject to the
effects of bankruptcy, insolvency,
Chase Securities Inc.
November 13, 1998
Page 19
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
accordance with the applicable Terms Agreement by the Rating
Agency.
Chase Securities Inc.
November 13, 1998
Page 20
(k) The Underwriters shall have received a certificate of
a Vice President or other proper officer of the Servicer, dated the
Closing Date, in which such officer, to the best of his or her
knowledge, shall state that the representations and warranties of
the Servicer in the Pooling and Servicing Agreement and the
Supplement are true and correct.
(l) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto
shall be reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters in all material
respects and the Underwriters and counsel for the Underwriters
shall have received such information, certificates and documents as
the Underwriters or counsel for the Underwriters may reasonably
request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Underwriters.
Notice of such cancellation shall be given to the Bank in writing or by
telephone or facsimile confirmed in writing.
Section 8. Reimbursement of Underwriters' Expenses. If the sale of
the Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 7
(other than the condition set forth in paragraph (b) of Section 7) is not
satisfied, or because of any refusal, inability or failure on the part of
the Bank to perform any agreement herein or comply with any provision hereof
other than by reason of a default by the Underwriters, the Bank will
reimburse the Underwriter for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred
by it in connection with the proposed
Chase Securities Inc.
November 13, 1998
Page 21
purchase and sale of the Certificates and upon demand the Bank shall pay the
full amount thereof to the Representative.
Section 9. Indemnification and Contribution. (a) The Bank agrees to
indemnify and hold harmless the Underwriters, each of the directors thereof,
each of the officers who are involved in the Offering and each person, if
any, who controls each Underwriter within the meaning of the Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement as
originally filed or in any amendment thereof, or in any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by it in
connection with investigating or preparing to defend or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that (i) the Bank will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made in any of such documents in reliance upon and in conformity with
written information furnished to the Bank by or on behalf of the Underwriters
specifically for use therein, and (ii) such indemnity with respect to any
Preliminary Final Prospectus shall not inure to any benefit of any Underwriter
(or any person controlling any of the Underwriters) from whom the person
asserting any such loss, claim, damage or liability purchased the 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
Chase Securities Inc.
November 13, 1998
Page 22
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 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
Chase Securities Inc.
November 13, 1998
Page 23
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
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
Chase Securities Inc.
November 13, 1998
Page 24
exceeds the total public offering price of the Certificates purchased by
such Underwriter under this Agreement, less the aggregate amount of any
damages which any Underwriter and its controlling persons have otherwise
been required to pay in respect of the same claim or any substantially
similar claim.
Section 10. Default by an Underwriter. If, on the Closing Date, any
Underwriter or Underwriters default in the performance of its or their
obligations under this Agreement, the Representative may make arrangements
for the purchase of such Certificates by other persons satisfactory to the
Bank and the Representative, including any of the Underwriters, but if no
such arrangements are made by the Closing Date, then each remaining
non-defaulting Underwriter shall be severally obligated to purchase the
Certificates which the defaulting Underwriter or Underwriters agreed but
failed to purchase on the Closing Date in the respective proportions which
the principal amount of Certificates set forth opposite the name of each
remaining non-defaulting Underwriter in Schedule I to the Terms Agreement
bears to the aggregate principal amount of Certificates set forth opposite
the names of all the remaining non-defaulting Underwriters in Schedule I to
the Terms Agreement; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Certificates on
the Closing Date if the aggregate principal amount of Certificates which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds one-eleventh of the aggregate principal amount of the
Certificates to be purchased on the Closing Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase in total more
than 110% of the principal amount of the Certificates which it agreed to
purchase on the Closing Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded and the remaining Underwriters or other
underwriters satisfactory to the Representative and the Bank do not elect to
purchase the Certificates which the defaulting Underwriter or Underwriters
agreed but failed to purchase, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Bank, except
that the provisions of Section 11 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context
Chase Securities Inc.
November 13, 1998
Page 25
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 270 Park Avenue, New York, New York
10017, Attention: David A. Howard Jr., Telecopy No: (212) 834-6564; if sent
to the Bank, will be mailed, delivered or telecopied and confirmed to them
care of Chase Manhattan Bank USA, National Association, at 802 Delaware
Avenue, Wilmington, Delaware, 19801, Telecopy No.: (302) 575-5467,
Attention: Keith Schuck, Vice President.
Section 13. Miscellaneous. This Agreement is to be governed by, and
construed in accordance with, the laws of the State of New York; it may be
executed in two or more counterparts, each of which when so executed and
delivered shall be an original, but all of which together shall constitute
one and the same instrument. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns and the officers and directors and controlling persons referred to
in Section 9 hereof, and no other person shall have any right or obligation
hereunder. This Agreement supersedes all prior agreements and understandings
between the parties relating to the subject matter hereof, other than those
contained in the Terms Agreement executed in connection herewith. Neither
this Agreement nor any term hereof
Chase Securities Inc.
November 13, 1998
Page 26
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
Section 14. Effectiveness. This Agreement shall become effective
upon execution and delivery of the applicable Terms Agreement.
If you are in agreement with the foregoing, please sign the
counterpart hereof and return it to the Bank, whereupon this letter and your
acceptance shall become a binding agreement among the Bank and the
Underwriters.
Very truly yours,
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By /s/ Keith Schuck
-----------------------------------
Name: Keith Schuck
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/ Christopher D. Davis
------------------------------------
Name: Christopher D. Davis
Title: Vice President
EXHIBIT A TO EXHIBIT 4.1
CHASE CREDIT CARD MASTER TRUST
CLASS A FLOATING RATE ASSET BACKED CERTIFICATES, SERIES 1998-6
CLASS B FLOATING RATE ASSET BACKED CERTIFICATES, SERIES 1998-6
TERMS AGREEMENT
Dated: November 13, 1998
To: Chase Manhattan Bank USA, National Association
Re: Underwriting Agreement dated November 13, 1998
Series Designation: Series 1998-6
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
Class Amount or Formula Price to Public (1)
- ----- ------ ---------- -------------------
Class A $650,000,000 LIBOR + 0.26% 100.000%
Class B $ 54,166,000 LIBOR + 0.51% 100.000%
(1) Plus accrued interest at the applicable rate from November 24, 1998.
Distribution Dates: Class A: the 15th day of each month (or if such 15th day
is not a business day the next succeeding business day), commencing January
15, 1999.
A-1
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 January 15,
1999.
Certificate Ratings:
- -------------------
Class A: AAA by Standard & Poor's
Aaa by Moody's
AAA by Fitch
Class B: A by Standard & Poor's
A2 by Moody's
A by Fitch
Credit Enhancement Provider: Bayerische Hypo-Und Vereinsbank
Trustee: The Bank of New York
Pooling and Servicing Agreement: The Second Amended and Restated Pooling and
Servicing Agreement, dated as of September 1, 1996, 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 1998-6 Supplement, dated as of November 24, 1998, between
Chase Manhattan Bank USA, National Association, as Transferor on and after
June 1, 1996, The Chase Manhattan Bank, as Transferor prior to June 1, 1996
and as Servicer, and The Bank of New York, as Trustee, on behalf of the
Series 1998-6 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%
Closing Date: November 24, 1998, 10:00 a.m., New York Time
Location of Closing: Simpson Thacher & Bartlett, 425 Lexington Avenue, New
York, New York 10017
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: /s/ Christopher D. Davis
------------------------------------
Name:
Title:
Accepted:
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
By: /s/ Keith Schuck
------------------------------------
Name: Keith Schuck
Title: Vice President
A-4
SCHEDULE I
TO EXHIBIT A TO EXHIBIT 4.1
UNDERWRITERS
$650,000,000 Principal Amount of Class A Floating Rate Asset Backed
Certificates, Series 1998-6
Principal Amount
Chase Securities Inc. $162,500,000
Lehman Brothers Inc. $162,500,000
Prudential Securities
Incorporated $162,500,000
Salomon Smith Barney Inc. $162,500,000
------------
Total $650,000,000
============
$54,166,000 Principal Amount of Class B Floating Rate Asset Backed
Certificates, Series 1998-6
Amount Principal
- ------ ---------
Chase Securities Inc. $54,166,000
A-5