EXHIBIT 4.1
CHASE CREDIT CARD MASTER TRUST
(formerly known as Chemical Master Credit Card Trust I)
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
(Transferor)
THE CHASE MANHATTAN BANK
(Servicer)
UNDERWRITING AGREEMENT
(Standard Terms)
August 13, 1997
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 by dealers in connection with the
initial public offering of such Certificates (such period being
hereinafter sometimes referred to as the "prospectus delivery period");
provided, further, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Bank by or on behalf of 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) Promptly following the execution of such applicable Terms
Agreement, the Bank will prepare a Prospectus Supplement setting forth
the amount of Certificates covered thereby and the terms thereof not
otherwise specified in the Basic Prospectus, the price at which such
Certificates are to be purchased by the Underwriters, the initial public
offering price, the selling concessions and allowances, and such other
information as the Bank deems appropriate. The Bank will file such
Prospectus Supplement with the Commission pursuant to Rule 424 within
the time prescribed therein and will provide evidence satisfactory to
the 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 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) 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 1996 or who is a person
to whom the document may otherwise lawfully be issued or passed on,
it has complied and shall comply with all applicable provisions of
the Financial Services Act 1986 of Great Britain with respect to
anything done by it in relation to the Certificates in, from or
otherwise involving the United Kingdom and if that Underwriter is an
authorized person under the Financial Services Act 1986, it has only
promoted and shall only promote (as that term is defined in
Regulation 1.02 of the Financial Services (Promotion of Unregulated
Schemes) Regulations 1991) to any person in the United Kingdom the
scheme described in the Prospectus if that person is of a kind
described either in Section 76(2) of the Financial Services Act 1986
or in Regulation 1.04 of the Financial Services (Promotion of
Unregulated Schemes) Regulations 1991.
For purposes of this Agreement, "Collateral Term Sheets" and
"Structural Term Sheets" shall have the respective meanings assigned to them
in the February 13, 1995 letter of Cleary, Gottlieb, Steen & Hamilton on
behalf of the Public Securities Association (which letter, and the SEC
staff's response thereto, were publicly available February 17, 1995). The
term "Collateral Term Sheet" as used herein includes any subsequent
Collateral Term Sheet that reflects a substantive change in the information
presented. "Computational Materials" has the meaning assigned to it in the
May 17, 1994 letter of Brown & Wood on behalf of Kidder, Peabody & Co., Inc.
(which letter, and the SEC staff's response thereto, were publicly available
May 20, 1994). "Series Term Sheet" has the meaning assigned to it in the
April 4, 1996 letter of Latham & Watkins on behalf of Greenwood Trust Company
(which letter, and the SEC staff's response thereto, were publicly available
April 5, 1996).
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, one or
more opinions, each dated the Closing Date, with respect to the
validity of the Certificates, the Initial Registration Statement, the
Additional Registration Statement (if any), the Final Prospectus,
certain matters of the Uniform Commercial Code, as adopted in the
State of Delaware, and such other related matters as the 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 EXHIBIT 4.1
CHASE CREDIT CARD MASTER TRUST
CLASS A 6.30% ASSET BACKED CERTIFICATES, SERIES 1997-2
CLASS B 6.45% ASSET BACKED CERTIFICATES, SERIES 1997-2
TERMS AGREEMENT
Dated: August 13, 1997
To: Chase Manhattan Bank USA, National Association
Re: Underwriting Agreement dated August 13, 1997
Series Designation: Series 1997-2
Underwriters:
The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the purposes of the
above referenced Underwriting Agreement as such Underwriting Agreement is
incorporated herein and made a part hereof.
Terms of the Certificates:
Initial Invested Interest Rate
Class Amount or Formula Price to Public (1)
- ----- ---------------- ------------- -------------------
Class A $1,500,000,000 6.30% 99.968750%
Class B $ 85,227,000 6.45% 99.953125%
(1) Plus accrued interest at the applicable rate from August 18, 1997.
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
September 15, 1997.
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: The Dai-Ichi Kangyo Bank, Limited, New York
Branch
Trustee: The Bank of New York
Pooling and Servicing Agreement: The Second Amended and Restated Pooling and
Servicing Agreement, dated as of September 1, 1996, between Chase Manhattan
Bank USA, National Association, as Transferor on and after June 1, 1996, The
Chase Manhattan Bank, as Transferor prior to June 1, 1996 and as Servicer,
and The Bank of New York, as Trustee, on behalf of the Certificateholders of
Chase Credit Card Master Trust.
Supplement: Series 1997-2 Supplement, dated as of August 18, 1997, between
Chase Manhattan Bank USA, National Association, as Transferor on and after
June 1, 1996, The Chase Manhattan Bank, as Transferor prior to June 1, 1996
and as Servicer, and The Bank of New York, as Trustee, on behalf of the
Series 1997-2 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: 99.74375%
Per Class B Certificate: 99.678125%
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 0.225% 0.15% 0.125%
Class B 0.275% 0.20% 0.150%
Closing Date: August 18, 1997, 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 Howard
----------------
Name: David Howard
Title: Vice President
Accepted:
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION
By: /s/ Keith Schuck
----------------
Name: Keith Schuck
Title: Managing Director
SCHEDULE I
to EXHIBIT A to EXHIBIT 4.1
UNDERWRITERS
$1,500,000,000 Principal Amount of Class A 6.30% Asset Backed Certificates,
Series 1997-2
Principal Amount
----------------
Chase Securities Inc. $ 300,000,000
Credit Suisse First Boston Corporation 300,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 300,000,000
Salomon Brothers Inc 300,000,000
UBS Securities LLC 300,000,000
==============
Total: $1,500,000,000
==============
$85,227,000 Principal Amount of Class B 6.45% Asset Backed Certificates,
Series 1997-2
Principal Amount
----------------
Chase Securities Inc. $ 85,227,000
==============