Exhibit 1.3
CHASE CREDIT CARD OWNER TRUST 2002-7
UNDERWRITING AGREEMENT
(Standard Terms)
November 5, 2002
J.P. Morgan Securities Inc.,
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 form the Chase Credit Card Owner Trust 2002-7 (the "Owner Trust")
to sell the Floating Rate Asset Backed Notes designated in the Terms Agreement
(as hereinafter defined)(the "Notes"). The Notes will be issued pursuant to an
Indenture (the "Indenture") between the Owner Trust and the Indenture Trustee
(the "Indenture Trustee") as described in the Terms Agreement attached hereto
as Exhibit A (the "Terms Agreement") between the Bank and the underwriters
listed on Schedule I thereto (the "Underwriters") which incorporates by
reference this Underwriting Agreement (the "Agreement," which may include the
Terms Agreement if the context so requires). The Notes designated in the Terms
Agreement will be sold in a public offering through the Underwriters. Notes
sold pursuant to the 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 Noteholders of such Series.
Each Note will represent an obligation of the Owner Trust. The
assets of the Owner Trust will include the Series Certificate which will be
issued by the Chase Credit Card Master Trust (the "Master Trust") concurrently
with the issuance
of the Notes, the Owner Trust Spread Account and the Note Distribution
Account. Each Series Certificate will represent a specified percentage
undivided interest in the Master Trust. The Series Certificate will be issued
in the aggregate principal amount specified in the Terms Agreement pursuant to
a Third Amended and Restated Pooling and Servicing Agreement, dated as of
November 15, 1999, as amended by the First Amendment thereto, dated as of
March 31, 2001 and the Second Amendment thereto, dated as of March 1, 2002 (as
further amended and supplemented as of the date hereof, the "Master Pooling
and Servicing Agreement") by and among the Bank, as Transferor on and after
June 1, 1996, JPMorgan Chase Bank, as Transferor prior to June 1, 1996 and as
Servicer, and The Bank of New York, as trustee (the "Master Trust Trustee"),
as supplemented by the Series Supplement specified in the Terms Agreement (the
"Supplement" and together with the Master Pooling and Servicing Agreement, the
"Pooling and Servicing Agreement"), by and among the Bank, JPMorgan Chase Bank
and the Master Trust Trustee. The Series Certificate will be deposited into
the Owner Trust by the Bank, as Depositor, pursuant to a deposit and
administration agreement between the Bank and the Owner Trust (the " Deposit
and Administration Agreement" ) on or before the Closing Date. The assets of
the Master Trust include, among other things, certain amounts due on a
portfolio of MasterCard(R) and VISA(R) revolving credit card accounts of the
Bank (the "Receivables"). To the extent not defined herein, capitalized terms
used herein have the meanings assigned to such terms in the Indenture. Unless
otherwise stated herein or in the Terms Agreement, as the context otherwise
requires or if such term is otherwise defined in the Indenture, each
capitalized term used or defined herein or in the Terms Agreement shall relate
only to the Notes designated in the Terms Agreement and no other Notes issued
by the Owner Trust.
Section 1. Representations and Warranties of the Bank. Upon the
execution of the Terms Agreement, the Bank represents and warrants to the
Underwriters that:
(a) The Bank has prepared and filed with the Securities
and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 (having the
registration number stated in the Terms Agreement), including a form
of prospectus, relating to the Series Certificate and the Notes.
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
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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 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 Series
Certificate and the Notes 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 Series Certificate and the Notes 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 Series
Certificate and the Notes 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 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
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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
Series Certificate and the Notes 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;"
(b) The Initial Registration Statement, including such
amendments thereto as may have been required on the date of the
Terms Agreement, and the Additional Registration Statement (if any),
relating to the Series Certificate or Notes, 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
the Trust Indenture Act of 1939 and the Rules and Regulations
thereunder, 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
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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 Notes or
the Series Certificate is required to be delivered under the Act by
dealers in connection with the initial public offering of such
Series Certificate or Notes (such period being hereinafter sometimes
referred to as the "prospectus delivery period"); provided, further,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Bank by or on behalf of the
Underwriters specifically for use in connection with the preparation
of a Registration Statement and the Final Prospectus;
(d) As of the Closing Date, the representations and
warranties of the Bank, as Transferor, in the Pooling and Servicing
Agreement and the Supplement and as Depositor in the Deposit and
Administration Agreement 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 Series Certificate has been duly authorized, and,
when issued and delivered pursuant to the Pooling and Servicing
Agreement, duly authenticated by the Master Trust Trustee and
deposited into the Owner Trust in exchange for the Notes, will be
duly and validly executed, issued and delivered and entitled to the
benefits provided by the Pooling and Servicing Agreement and the
Supplement; the Notes have been duly authorized, and, when executed,
duly authenticated by the Indenture Trustee and delivered pursuant
to the Indenture, and paid for by the Underwriters in accordance
with the terms of the
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Indenture and the Terms Agreement, the Notes will be duly and
validly executed, issued and delivered and will constitute legal,
valid and binding obligations of the Owner Trust, enforceable
against the Owner Trust in accordance with their terms, except to
the extent that the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, conservatorship, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights as such laws would apply in the event of the
insolvency, liquidation or reorganization or other similar
occurrence with respect to the Owner Trust or in the event of any
moratorium or similar occurrence affecting the Owner Trust and to
general principles of equity; and the Series Certificate, the
Pooling and Servicing Agreement, the Supplement, the Notes and the
Indenture conform to the descriptions thereof in the Final
Prospectus in all material respects;
(g) When executed and delivered by the parties thereto,
the Owner Trust Agreement will constitute a legal, valid and binding
obligation of the Bank, enforceable against the Bank in accordance
with its terms, except to the extent that the enforceability thereof
may be subject to bankruptcy, insolvency, reorganization,
conservatorship, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights as such laws would apply in
the event of the insolvency, liquidation or reorganization or other
similar occurrence with respect to the Bank or in the event of any
moratorium or similar occurrence affecting the Bank and to general
principles of equity;
(h) 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 Terms Agreement,
the Deposit and Administration 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 Master Trust's interest in the Receivables;
(i) 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
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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 Terms Agreement, the
Pooling and Servicing Agreement, the Supplement and the Deposit and
Administration Agreement, and the issuance and deposit of the Series
Certificate and issuance and sale of the Notes 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 and in the
Indenture and the Deposit and Administration Agreement;
(j) 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 Series Certificate or the Notes; 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
(k) Each of this Agreement and the Terms Agreement has
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 Notes set forth opposite
each Underwriter's name
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in Schedule I to the Terms Agreement. The purchase price for the Notes shall
be as set forth in the Terms Agreement.
The Bank acknowledges and agrees that J.P. Morgan Securities Inc.
may sell Notes to any of its affiliates, and that any such affiliates may sell
such Notes to J.P. Morgan Securities Inc.
Section 3. Delivery and Payment. Unless otherwise provided in the
Terms Agreement, payment for Notes 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, 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 Notes as
specified in the 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 Terms Agreement, payment for the
Notes shall be made against delivery to the Underwriters of the Notes
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 Notes 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 Notes 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 Terms Agreement:
(a) Promptly following the execution of such Terms
Agreement, the Bank will prepare a Prospectus Supplement relating to
the issuance of the Series Certificate and the Notes, setting forth
the amount of Notes covered thereby and the terms thereof not
otherwise specified in the Basic Prospectus,
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the price at which such Notes are to be purchased by the
Underwriters, the initial public offering price, the selling
concessions and allowances, and such other information as the Bank
deems appropriate. The Bank will file such Prospectus Supplement
with the Commission pursuant to Rule 424 within the time prescribed
therein and will provide evidence satisfactory to the Underwriters
of such timely filing. In addition, to the extent that the
Underwriters (i) have provided to the Bank Collateral Term Sheets
(as defined below) that the Underwriters have provided to
prospective investors, the Bank will file such Collateral Term
Sheets as an exhibit to a report on Form 8-K within two business
days of its receipt thereof, or (ii) have provided to the Bank
Structural Term Sheets or Computational Materials (each as defined
below) that such Underwriters have provided to a prospective
investor, the Bank will file or cause to be filed with the
Commission a report on Form 8-K containing such Structural Term
Sheet and Computational Materials, as soon as reasonably practicable
after the date of this Agreement, but in any event, not later than
the date 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 Notes 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
9
such stop order or notification and, if any is issued, will promptly
use its best efforts to obtain the withdrawal thereof.
(d) If, at any time during the prospectus delivery period,
any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act, the Bank
promptly will prepare and file with the Commission, an amendment or
a supplement which will correct such statement or omission or effect
such compliance.
(e) The Bank will endeavor to qualify the Notes 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 Notes; 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 Notes, or until such time as the Underwriters
shall cease to maintain a secondary market in the Notes, whichever
first occurs, the Bank will deliver to each Underwriter (i) the
annual statements of compliance pursuant to the Indenture and the
Pooling and Servicing Agreement, (ii) the annual independent
certified public accountants' reports furnished to the Master Trust
Trustee, (iii) all documents required to be distributed to
Certificateholders of the Master Trust and to Noteholders of the
Owner Trust and (iv) all documents
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filed with the Commission pursuant to the Exchange Act or any order
of the Commission thereunder, in each case as provided to the
Indenture Trustee, Master Trust Trustee or filed with the
Commission, as soon as such statements and reports are furnished to
the Indenture Trustee, Master Trust 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 Terms
Agreement, the Pooling and Servicing Agreement, the Indenture, the
Deposit and Administration Agreement, the Supplement, the Series
Certificate, and the Notes, (ii) the cost of delivering the Notes to
the Underwriters, (iii) any fees charged by investment rating
agencies for the rating of the Series Certificate and the Notes,
(iv) the Indenture Trustee's and the Owner Trustee's fees and the
reasonable fees and disbursements of the counsel thereto; and (v)
the reasonable expenses and costs (not to exceed the amount
specified in the Terms Agreement) incurred in connection with "blue
sky" qualification of the Notes 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 Notes 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 Series Certificate or the Notes by the rating agency
or agencies that initially rate the Series Certificate or the Notes
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 Owner Trust to make generally
available to Noteholders 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 Owner
Trust occurring after the effective date of the Initial Registration
Statement (or, if later, the effective date of the Additional
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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 Notes without the prior written
consent of each Underwriter or unless such securities are referenced
in the Terms Agreement.
Section 6. Representations and Warranties of the Underwriters. Each
Underwriter represents, warrants, covenants and agrees with the Bank that:
(a) It either (A) has not provided any potential investor
with a Collateral Term Sheet (that is required to be filed with the
Commission within two business days of first use under the Terms of
the Public Securities Association Letter as described below), or (B)
has, substantially contemporaneously with its first delivery of such
Collateral Term Sheet to a potential investor, delivered such
Collateral Term Sheet to the Bank, which Collateral Term Sheet, if
any, is attached to this Agreement as Exhibit B.
(b) It either (A) has not provided any potential investor
with a Structural Term Sheet or Computational Materials, or (B) has
provided any such Structural Term Sheet or Computational Materials
to the Bank, which Structural Term Sheets and Computational
Materials, if any, are attached to this Agreement as Exhibit C.
(c) It either (A) has not provided any potential investor
with a Series Term Sheet or (B) has provided any Series Term Sheet
to the Bank, which Series Term Sheets, if any, are attached to this
Agreement as Exhibit D.
(d) Each Collateral Term Sheet bears a legend indicating
that the information contained therein will be superseded by the
description of the collateral contained in the Prospectus Supplement
and, except in the case of the initial Collateral Term Sheet, that
such information supersedes the information in all prior Collateral
Term Sheets.
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(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 Computational Materials to any
investor after the date of this Agreement.
(h) 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
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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).
(i) (x) It has not offered or sold, and prior to the date
which is six months after the date of issue of the Notes shall not
offer or sell any Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in
circumstances which do not constitute an offer to the public in the
United Kingdom for the purposes of the Public Offers of Securities
Regulations 1995; (y) it has complied and shall comply with all
applicable provisions of the Financial Services and Markets Act 2000
with respect to anything done by it in relation to the Notes in,
from or otherwise involving the United Kingdom; and (z) it has only
communicated or caused to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Acts 2000) received
by it in connection with the issue or sale of Notes in circumstances
in which section 21(1) of the Financial Services and Markets Act
2000 does not apply to the Owner Trust.
Section 7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for Notes 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 Notes pursuant to the terms hereof, to the performance by the Bank of
its obligations hereunder and under the 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
14
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 Notes; (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 Notes on the terms specified herein and the Terms
Agreement.
(c) The Underwriters have received a certificate of a Vice
President or other proper officer of the Bank, dated the Closing
Date, in which such officer, to the best of his knowledge, shall
state that (i) the representations and warranties of the Bank in
this Agreement are true and correct in all material respects, (ii)
the Bank has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to
the Closing Date, (iii) no stop order suspending the effectiveness
of a Registration Statement has been issued and no proceedings for
that purpose have been instituted or are threatened by the
Commission and (iv) the Final Prospectus does not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) The Bank shall have furnished to the Underwriters the
opinions of Simpson Thacher & Bartlett, counsel for the Bank, dated
the Closing Date, in substantially the forms attached hereto as
Exhibit 1 (with respect to Rule 10b-5 and other matters), Exhibit 2
(with respect to corporate, New York UCC and FDIC matters relating
to the Master Trust, the Receivables, the Owner Trust, the Series
Certificate and the Notes) and Exhibit 3 (with respect to tax
matters), with only such changes as shall be reasonably satisfactory
to the Representative.
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(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 Notes, the Initial Registration Statement, the
Additional Registration Statement (if any), the Final Prospectus,
the Delaware UCC and the Delaware Asset Backed Securities
Facilitation Act, 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 Terms Agreement and at the Closing
Date, PricewaterhouseCoopers LLP (or such other independent public
accountants as shall be named in the 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 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 (i) the
interest of the Master Trust Trustee in the Receivables and the
proceeds thereof, (ii) the interest of the Owner Trust in the Series
Certificate and (iii) the interest of the Indenture Trustee, for the
benefit of the holders of the Notes, in the Series Certificate.
(h) The Underwriters shall have received from Emmet,
Marvin & Martin, LLP, counsel to the Master Trust Trustee, an
opinion, dated the Closing Date, to the effect that:
(i) The Master Trust Trustee has been duly
organized and is validly existing as a banking corporation
under the laws of New York and has
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the corporate power and authority to conduct business and
affairs as a trustee.
(ii) The Master Trust 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, and the Supplement.
(iii) Each of the Pooling and Servicing
Agreement and the Supplement has been duly authorized,
executed, and delivered by the Master Trust Trustee.
(iv) The Series Certificate has been duly
executed and authenticated by the Master Trust Trustee.
(v) Neither the execution nor the delivery by
the Master Trust Trustee of the Pooling and Servicing
Agreement and the Supplement 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 Master Trust Trustee.
(vi) The execution and delivery of the Pooling
and Servicing Agreement and the Supplement by the Master
Trust Trustee and the performance by the Master Trust
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 Master Trust Trustee, or (y) the Certificate of
Incorporation or By-laws of the Master Trust Trustee.
(i) The Underwriters shall have received an opinion of
Richards, Layton & Finger, special counsel to the Owner Trustee,
reasonably satisfactory to the Underwriters and their counsel, dated
the Closing Date, in substantially the form attached hereto as
Exhibit 4, with only such changes as shall be reasonably
satisfactory to the Representative.
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(j) The Underwriters shall have received an opinion of
Richards, Layton & Finger, special counsel to the Owner Trust,
reasonably satisfactory to the Underwriters and their counsel, dated
the Closing Date, in substantially the form attached hereto as
Exhibit 5, with only such changes as shall be reasonably
satisfactory to the Representative.
(k) The Underwriters shall have received an opinion of
Emmet, Marvin & Martin, LLP, special counsel to the Indenture
Trustee, reasonably satisfactory to the Underwriters and their
counsel, dated the Closing Date, in substantially the form attached
hereto as Exhibit 5, with only such changes as shall be reasonably
satisfactory to the Representative.
(l) The Underwriters shall have received evidence
satisfactory to them that the Series Certificate and the Notes shall
be rated in accordance with the Terms Agreement by the Rating
Agency.
(m) 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.
(n) 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.
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Section 8. Reimbursement of Underwriters' Expenses. If the sale of
the Notes 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
Underwriters for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Notes 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
Notes 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 Notes 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.
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(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
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).
20
(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
Underwriters are entitled, there shall be considered the relative benefits
received by each from the offering of the Notes (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 exceeds the total public offering price of the Notes 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 9. 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 Notes 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 Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase on the Closing Date
in the respective proportions which the principal amount of Notes 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 Notes 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
21
Notes on the Closing Date if the aggregate principal amount of Notes which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds one-eleventh of the aggregate principal amount of the Notes 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 Notes 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 Notes which the
defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Bank, except that the provisions of Section 11 shall not
terminate and shall remain in effect. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
otherwise requires, any party not listed in Schedule I to the Terms Agreement
who, pursuant to this Section 10, purchases Notes which a defaulting
Underwriter agreed but failed to purchase.
Section 10. 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 Notes. The provisions of Sections 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
Section 11. 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, 10th Floor, New York, New York 10017,
Attention: Marta G. Ricardo, 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 500 Stanton Christiana Road,
Floor 1, Newark, Delaware, 19713, Telecopy No.: (302) 552-6310, Attention:
Keith Schuck, Senior Vice President.
Section 12. Secondary Trust or Special Purpose Vehicle. Each
Underwriter severally represents that it will not, at any time that such
Underwriter is acting as an "underwriter" (as defined in Section 2(11) of the
Act) with respect to the Notes, transfer, deposit or otherwise convey any
Notes into a trust or other type of special purpose vehicle that issues
securities or other instruments backed in whole or in part by, or that
represents interests in, such Notes without the prior written consent of the
Bank.
22
Section 13. Miscellaneous. This Agreement is to be governed by, and
construed in accordance with, the laws of the State of New York; it may be
executed in two or more counterparts, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one
and the same instrument. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns
and the officers and directors and controlling persons referred to in Section
9 hereof, and no other person shall have any right or obligation hereunder.
This Agreement supersedes all prior agreements and understandings between the
parties relating to the subject matter hereof, other than those contained in
the Terms Agreement executed in connection herewith. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
Section 14. Effectiveness. This Agreement shall become effective
upon execution and delivery of the Terms Agreement.
23
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/ Patricia M. Garvey
---------------------------------
Name: Patricia M. Garvey
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date
hereof.
J.P. MORGAN SECURITIES INC.
as representative of the
Underwriters named in
Schedule I to the Terms
Agreement
By /s/ Marta G. Ricardo
-----------------------------
Name: Marta G. Ricardo
Title: Vice President
24