Exhibit 4.2
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 6, 1996
Chase Securities Inc.
As Underwriter and as Representative
of the 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 Asset Backed Certificates
designated in the applicable Terms Agreement (as hereinafter defined) (the
"Certificates"). The Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") described in the
applicable Terms Agreement between the Bank, as Transferor on and after June 1,
1996, The Chase Manhattan Bank, as Transferor prior to June 1, 1996 and as
Servicer (the "Servicer"), and the trustee identified in the applicable Terms
Agreement (the "Trustee"), as supplemented by the Series Supplement having the
date stated in the applicable Terms Agreement, between the Bank, as Transferor,
the Servicer and the Trustee (the "Supplement"). The Series of Certificates
designated in the applicable Terms Agreement will be sold in a public offering
through the underwriters listed on Schedule I to the applicable Terms
Agreement, one or more of which may act as representative of such underwriters
(any underwriter through which Certificates are sold shall be referred to
herein as an "Underwriter" or, collectively, all such Underwriters may be
referred to as the "Underwriter"; any representatives thereof may be referred
to herein as a "Representative"). Certificates of any Series sold to the
Underwriters shall be sold pursuant to a Terms Agreement by and between the
Bank and the Representatives, 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 Trademark) and VISA (Registered Trademark)
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 each Underwriter that:
(a) The Bank has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement
on Form S-3 (having the registration number stated in the applicable Terms
Agreement), including a form of prospectus, relating to the Certificates.
Such registration statement, as amended at the time it was declared
effective by the Commission, including all material incorporated by
reference therein, including all information contained in any Additional
Registration Statement (as defined herein) and deemed to be part of such
registration statement as of the time such Additional Registration
Statement (if any) was declared effective by the Commission pursuant to
the General Instructions of the Form on which it was filed and including
all information (if any) deemed to be a part of such registration
statement as of the time it was declared effective by the Commission
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act (such registration
statement, the "Initial Registration Statement") has been declared
effective by the Commission. If any post-effective amendment has been
filed with respect to the Initial Registration Statement, prior to the
execution and delivery of the applicable Terms Agreement, the most recent
such amendment has been declared effective by the Commission. If (i) an
additional registration statement, including the contents of the Initial
Registration Statement incorporated by reference therein and including all
information (if any) deemed to be a part of such additional registration
statement pursuant to Rule 430A(b)(the "Additional Registration
Statement") relating to the Certificates has been filed with the
Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if
so filed, has become effective upon filing pursuant to Rule 462(b), then
the Certificates have been duly registered under the Act pursuant to the
Initial Registration Statement and such Additional Registration Statement
or (ii) an Additional Registration Statement is proposed to be filed with
the Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to Rule 462(b), then upon such filing the Certificates
will have been duly registered under the Act pursuant to the Initial
Registration Statement and such Additional Registration Statement. If the
Bank does not propose to amend the Initial Registration Statement or, if
an Additional Registration Statement has been filed and the Bank does not
propose to amend it and if any post-effective amendment to either such
registration statement 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
Representative 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 Representative, 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 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 in connection with sales of such Certificates (such period being
hereinafter sometimes referred to as the "prospectus delivery period");
provided, further, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Bank by or on behalf of an
Underwriter specifically for use in connection with the preparation of a
Registration Statement and the Final Prospectus;
(d) As of the Closing Date, the representations and warranties of
the Bank, as Transferor, in the Pooling and Servicing Agreement and the
Supplement will be true and correct;
(e) The Bank has been duly organized and is validly existing as a
national bank in good standing under the laws of the United States, with
power and authority to own its properties and conduct its business as
described in the Final Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of
the Bank and its subsidiaries, taken as a whole;
(f) The Certificates have been duly authorized, and, when issued and
delivered pursuant to the Pooling and Servicing Agreement and the
Supplement, duly authenticated by the Trustee and paid for by the
Underwriters in accordance with the terms of this Agreement and the
applicable Terms Agreement, will be duly and validly executed, issued and
delivered and entitled to the benefits provided by the Pooling and
Servicing Agreement and the Supplement; each of the Pooling and Servicing
Agreement and the Supplement have been duly authorized and, when executed
and delivered by the Bank, as Transferor, each of the Pooling and
Servicing Agreement and the Supplement will (assuming due execution and
delivery by the Trustee) constitute a valid and binding agreement of the
Bank; the Certificates, the Pooling and Servicing Agreement and the
Supplement conform to the descriptions thereof in the Final Prospectus in
all material respects; and, if applicable, when executed by the Bank, as
Transferor, the Credit Enhancement Agreement will (assuming due execution
and delivery by the Trustee and Credit Enhancement Provider) constitute a
valid and binding agreement of the Bank;
(g) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required to be obtained or
made by the Bank for the consummation of the transactions contemplated by
this Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement or the Supplement except such as have been obtained and made
under the Act, such as may be required under state securities laws and the
filing of any financing statements required to perfect the Trust's
interest in the Receivables;
(h) The Bank is not in violation of its Articles of Association or
By-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or instrument
to which it is a party or by which it or its properties is bound which
would have a material adverse effect on the transactions contemplated
herein, in the Pooling and Servicing Agreement or the Supplement. The
execution, delivery and performance of this Agreement, the applicable
Terms Agreement, the Pooling and Servicing Agreement, the 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;
(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 each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Bank, the principal
amount of Certificates set forth opposite such 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, 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 Representative 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 Representative for
the respective accounts of the several Underwriters of the Certificates
registered in the name of Cede & Co. as nominee of The Depository Trust Company
and in such denominations as the Representative 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 Representatives 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
several 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) Immediately 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
Representative of such timely filing. In addition, to the extent that any
Underwriter (i) has provided to the Bank Collateral Term Sheets (as
defined below) that such Underwriter has provided to a prospective
investor, the Bank has filed such Collateral Term Sheets as an exhibit to
a report on Form 8-K within two business days of its receipt thereof, or
(ii) has provided to the Bank Structural Term Sheets or Computational
Materials (each as defined below) that such Underwriter has provided to a
prospective investor, the Bank will file or cause to be filed with the
Commission a report on Form 8-K containing such Structural Term Sheet and
Computational Materials, as soon as reasonably practicable after the date
of this Agreement, but in any event, not later than the date on 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 Representative a copy of the proposed amendment
or supplement for review and will not file any such proposed amendment or
supplement to which the Representative reasonably objects.
(c) During the prospectus delivery period, the Bank will advise the
Representative promptly after it receives notice thereof, (i) when any
amendment to any Registration Statement shall have become effective, (ii)
of any request by the Commission for any amendment or supplement to any
Registration Statement or the Final Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv) of
the receipt by the Bank of any notification with respect to any suspension
of the qualification of the Certificates for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and will use its best efforts to prevent the issuance of any such
stop order or notification and, if any is issued, will promptly use its
best efforts to obtain the withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any event
occurs as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Final Prospectus to comply
with the Act, the Bank promptly will prepare and file with the Commission,
an amendment or a supplement which will correct such statement or omission
or effect such compliance.
(e) The Bank will endeavor to qualify the Certificates for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such
qualification in effect so long as reasonably required for distribution of
the Certificates; provided, however, that the Bank shall not be obligated
to qualify to do business in any jurisdiction in which it is not currently
so qualified; and provided, further, that the Bank shall not be required
to file a general consent to service of process in any jurisdiction.
(f) The Bank will furnish to the Representative, without charge, two
copies of each Registration Statement (including exhibits thereto), one of
which will be signed, and to each Underwriter conformed copies of each
Registration Statement (without exhibits thereto) and, during the
prospectus delivery period, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as the
Underwriters 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 the Underwriters (i) the annual
statements of compliance, (ii) the annual independent certified public
accountants' reports furnished to the Trustee, (iii) all documents
required to be distributed to Certificateholders of the Trust and (iv) all
documents filed with the Commission pursuant to the Exchange Act or any
order of the Commission thereunder, in each case as provided to the
Trustee or filed with the Commission, as soon as such statements and
reports are furnished to the Trustee or filed or, if an affiliate of the
Bank is not the Servicer, as soon thereafter as practicable.
(h) The Bank will pay all expenses incident to the performance of
its obligations under this Agreement, including without limitation: (i)
expenses of preparing, printing and reproducing each Registration
Statement, the Preliminary Final Prospectus, the Final Prospectus, this
Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement, the Supplement and the Certificates, (ii) the cost of
delivering the Certificates to the Underwriters, (iii) any fees charged by
investment rating agencies for the rating of such Certificates, and (iv)
the reasonable expenses and costs (not to exceed the amount specified in
the applicable Terms Agreement) incurred in connection with "blue sky"
qualification of the Certificates for sale in those states designated by
the Underwriters and the printing of memoranda relating thereto (it being
understood that, except as specified in this paragraph (h) and in Sections
8 and 9 hereof, the Underwriters will pay all their own costs and
expenses, including the cost of printing any Agreement Among Underwriters,
the fees of counsel to any Underwriter, transfer taxes on resale of any
Certificates by them and advertising expenses connected with any offers
that they may make).
(i) To the extent, if any, that the rating provided with respect to
the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking
of any other actions by the Bank, the Bank shall furnish such documents
and take any such other actions.
(j) The Bank will cause the Trust to make generally available to
Certificateholders and to the Representative as soon as practicable an
earnings statement covering a period of at least twelve months beginning
with the first fiscal quarter of the Trust occurring after the effective
date of the Initial Registration Statement (or, if later, the effective
date of the Additional Registration Statement), which shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder.
(k) During the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, the Bank will
not offer, sell, contract to sell or otherwise dispose of any credit card
asset-backed securities of the Bank which are substantially similar to the
Certificates without the prior written consent of the Representative or
unless such securities are referenced in the Terms Agreement.
Section 6. Representations and Warranties of the Underwriters. Each
Underwriter represents, warrants, covenants and agrees with the Bank that:
(a) It either (A) has not provided any potential investor with a
Collateral Term Sheet (that is required to be filed with the Commission
within two business days of first use under the Terms of the Public
Securities Association Letter as described below), or (B) has,
substantially contemporaneously with its first delivery of such Collateral
Term Sheet to a potential investor, delivered such Collateral Term Sheet
to the Bank, which Collateral Term Sheet, if any, is attached to this
Agreement as Exhibit B.
(b) It either (A) has not provided any potential investor with a
Structural Term Sheet or Computational Materials, or (B) has provided any
such Structural Term Sheet or Computational Materials to the Bank, which
Structural Term Sheets and Computational Materials, if any, are attached
to this Agreement as Exhibit C.
(c) It either (A) has not provided any potential investor with a
Series Term Sheet or (B) has provided any Series Term Sheet to the Bank,
which Series Term Sheets, if any, are attached to this Agreement as
Exhibit D.
(d) Each Collateral Term Sheet bears a legend indicating that the
information contained therein will be superseded by the description of the
collateral contained in the Prospectus Supplement and, except in the case
of the initial Collateral Term Sheet, that such information supersedes the
information in all prior Collateral Term Sheets.
(e) Each Structural Term Sheet and Series Term Sheet and all
Computational Materials bear a legend substantially as follows (or in such
other form as may be agreed prior to the date of this Agreement):
This information does not constitute either an offer to sell or
a solicitation of an offer to buy any of the securities referred
to herein. Information contained herein is confidential and
provided for information only, does not purport to be complete
and should not be relied upon in connection with any decision to
purchase the securities. This information supersedes any prior
versions hereof and will be deemed to be superseded by any
subsequent versions including, with respect to any description
of the securities or the underlying assets, the information
contained in the final Prospectus and accompanying Prospectus
Supplement. Offers to sell and solicitations of offers to buy
the securities are made only by the final Prospectus and the
related Prospectus Supplement.
(f) It (at its own expense) agrees to provide to the Bank any
accountants' letters obtained relating to the Collateral Term Sheets,
Structural Term Sheets and Computational Materials, which accountants'
letters shall be addressed to the Bank.
(g) It has not, and will not, without the prior written consent of
the Bank, provide any Collateral Term Sheets, Structural Term Sheets,
Series Term Sheets or Computational Materials to any investor after the
date of this Agreement.
(h) It has only issued or passed on and shall only issue or pass on
in the United Kingdom any document received by it in connection with the
issue of the Certificates to a person who is of a kind described in
Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements)(Exemptions) Order 1995 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).
Section 7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for Certificates on the
Closing Date shall be subject to the accuracy of the representations and
warranties of the Bank contained herein, to the accuracy of the statements of
the Bank made in any certificates pursuant to the terms hereof, to the
performance by the Bank of its obligations hereunder and under the applicable
Terms Agreement and to the following additional conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 in the manner and within the applicable time period
prescribed for such filing by the rules and regulations of the Commission
under the Act and in accordance with Section 5(a) of this Agreement; and,
as of the Closing Date, no stop order suspending the effectiveness of any
Registration Statement shall have been issued, and no proceedings for such
purpose shall have been instituted or threatened by the Commission; and
all requests for additional information from the Commission with respect
to any Registration Statement shall have been complied with to the
reasonable satisfaction of the Representative.
(b) Subsequent to the date of this Agreement, there shall not have
occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the
Bank which materially impairs the investment quality of the Certificates;
(ii) any suspension or material limitation of trading of securities
generally on the New York Stock Exchange or the American Stock Exchange;
(iii) a declaration of a general moratorium on commercial banking
activities in New York by either Federal or New York State authorities; or
(iv) any material outbreak or declaration of hostilities or other calamity
or crisis the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Representative,
impracticable to market the Certificates on the terms specified herein and
the applicable Terms Agreement.
(c) The Underwriters have received a certificate of a Vice President
or other proper officer of the Bank, dated the Closing Date, in which such
officer, to the best of his 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, an opinion 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 and such other related matters as the
Underwriters may reasonably require, and the Bank shall have furnished to
such counsel such documents as they request for the purpose of enabling
them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at the Closing
Date, Price Waterhouse LLP (or such other independent public accountants
as shall be named in the applicable Terms Agreement), certified
independent public accountants for the Bank, shall have furnished to the
Underwriters a letter or letters, dated respectively as of the date of the
applicable Terms Agreement and as of the Closing Date confirming that they
are certified independent public accountants within the meaning of the Act
and the Exchange Act, and the respective applicable published rules and
regulations thereunder and substantially in the form heretofore agreed and
otherwise in form and in substance satisfactory to the Representative and
counsel for the Underwriters.
(g) The Underwriters shall receive evidence satisfactory to them
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,
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.
(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
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 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 each Underwriter, each of the directors
thereof, each of the officers who are involved in the Offering and each person,
if any, who controls each Underwriter within the meaning of the Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement as
originally filed or in any amendment thereof, or in any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by it in
connection with investigating or preparing to defend or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that (i) the Bank will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made in any of such documents in reliance upon and in
conformity with written information furnished to the Bank by or on behalf of
the Underwriters specifically for use therein, and (ii) such indemnity with
respect to any Preliminary Final Prospectus shall not inure to the benefit of
the 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
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 severally and not jointly 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 that 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 any 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 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
Underwriters 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 such
Underwriter shall be obligated to make contribution hereunder which in the
aggregate exceeds the total public offering price of the Certificates purchased
by such Underwriter under this Agreement, less the aggregate amount of any
damages which such 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. (a) If, on the
Closing Date, any Underwriter or Underwriters default in the performance of its
or their obligations under this Agreement, the Representative may make
arrangements for the purchase of such Certificates by other persons
satisfactory to the Bank and the Representative, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, then
each remaining non-defaulting Underwriter shall be severally obligated to
purchase the Certificates which the defaulting Underwriter or Underwriters
agreed but failed to purchase on the Closing Date in the respective proportions
which the principal amount of Certificates set forth opposite the name of each
remaining non-defaulting Underwriter in Schedule I to the Terms Agreement bears
to the aggregate principal amount of Certificates set forth opposite the names
of all the remaining non-defaulting Underwriters in Schedule I to the Terms
Agreement; provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Certificates on the Closing Date
if the aggregate principal amount of Certificates which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such date exceeds
one-eleventh of the aggregate principal amount of the Certificates to be
purchased on the Closing Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase in total more than 110% of the principal
amount of the Certificates which it agreed to purchase on the Closing Date
pursuant to the terms of Section 2. If the foregoing maximums are exceeded and
the remaining Underwriters or other underwriters satisfactory to the
Representative and the Bank do not elect to purchase the Certificates which the
defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Bank, except that the provisions of Section 11 shall not
terminate and shall remain in effect. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
otherwise requires, any party not listed in Schedule I to the Terms Agreement
who, pursuant to this Section 10, purchases Certificates which a defaulting
Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have for damages caused by its default. If
other Underwriters are obligated or agree to purchase the Certificates of a
defaulting Underwriter, either the Representative or the Bank may postpone the
Closing Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Bank or counsel for the Underwriters may
be necessary in the Initial Registration Statement, the Additional Registration
Statement (if any), the Final Prospectus or in any other document or
arrangement, and the Bank agrees to file promptly any amendment or supplement
to the Registration Statements or the Final Prospectus that effects any such
changes.
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 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 several
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
to the Terms Agreement
By /s/ David A. Howard Jr.
Name: David A. Howard Jr.
Title: Managing Director
EXHIBIT A
TO UNDERWRITING AGREEMENT
CHASE CREDIT CARD MASTER TRUST
CLASS A FLOATING RATE ASSET BACKED CERTIFICATES, SERIES 1996-4
CLASS B FLOATING RATE ASSET BACKED CERTIFICATES, SERIES 1996-4
TERMS AGREEMENT
---------------
Dated: November 6, 1996
To: Chase Manhattan Bank USA, National Association
Re: Underwriting Agreement dated November 6, 1996
Series Designation: Series 1996-4
Underwriters:
The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the purposes of the
above referenced Underwriting Agreement as such Underwriting Agreement is
incorporated herein and made a part hereof.
Terms of the Certificates:
Initial Invested Interest Rate Price to
Class Amount or Formula Public (1)
- ----- ---------------- ------------- ----------
Class A $1,400,000,000 LIBOR + 0.13% 100%
Class B $116,666,000 LIBOR + 0.35% 100%
(1) Plus accrued interest at the applicable rate from November 14, 1996.
Distribution Dates: the 15th calendar day (or if such 15th day is not a
business day, the next succeeding business day) of each Month, commencing
December 16, 1996.
Certificate Ratings:
Class A: AAA by Standard & Poor's
Aaa by Moody's
Class B: A by Standard & Poor's
A2 by Moody's
Credit Enhancement Provider: Union Bank of Switzerland
Trustee: The Bank of New York
Pooling and Servicing Agreement: The Second Amended and Restated Pooling and
Servicing Agreement, dated as of September 1, 1996, between Chase Manhattan
Bank USA, National Association, as Transferor, The Chase Manhattan Bank, as
Servicer, and The Bank of New York, as Trustee, on behalf of the
Certificateholders of Chase Credit Card Master Trust.
Supplement: Series 1996-4 Supplement, dated as of November 14, 1996, between
Chase Manhattan Bank USA, National Association, as Transferor, The Chase
Manhattan Bank, as Servicer, and The Bank of New York, as Trustee, on behalf of
the Series 1996-4 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: 99.6%
Per Class B Certificate: 99.575%
Registration Statement: Registration No. 333-04607
Underwriting Commissions, Concessions and Discounts:
The Underwriters' discounts and commissions, the concessions
that the Underwriters 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 and Class B Certificates, shall be as
follows:
Underwriting
Discounts Selling
Class and Concessions Concessions Reallowance
----- --------------- ----------- -----------
Class A 0.400% 0.275% 0.125%
Class B 0.425% 0.300% 0.125%
Closing Date: November 14, 1996, 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.
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/ David A. Howard Jr.
Name: David A. Howard Jr.
Title: Managing Director
Accepted:
Chase Manhattan Bank USA, National Association
By: /s/ Keith Schuck
Name: Keith Schuck
Title: Vice President
SCHEDULE I
TO EXHIBIT A TO UNDERWRITING AGREEMENT
UNDERWRITERS
$1,400,000,000 Principal Amount of Class A Floating Rate Asset Backed
Certificates, Series 1996-4
Principal Amount
----------------
Chase Securities Inc. 233,335,000
First Chicago Capital Markets, Inc. 233,333,000
Lehman Brothers Inc. 233,333,000
Morgan Stanley & Co. Incorporated 233,333,000
Salomon Brothers Inc 233,333,000
UBS Securities LLC 233,333,000
Total $1,400,000,000
$116,666,000 Principal Amount of Class B Floating Rate Asset Backed
Certificates, Series 1996-4
Principal Amount
----------------
Chase Securities Inc. $116,666,000