Exhibit 1.3
CHASE CREDIT CARD OWNER TRUST 2002-8
UNDERWRITING AGREEMENT
(Standard Terms)
November 13, 2002
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
as Representative of the
several Underwriters named
in the Terms Agreement
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Chase Manhattan Bank USA, National Association (the "Bank"),
proposes to form the Chase Credit Card Owner Trust 2002-8 (the "Owner Trust")
to sell the Floating Rate Asset Backed Notes designated in the Terms Agreement
(as hereinafter defined)(the "Notes"). The Notes will be issued pursuant to an
Indenture (the "Indenture") between the Owner Trust and the Indenture Trustee
(the "Indenture Trustee") as described in the Terms Agreement attached hereto
as Exhibit A (the "Terms Agreement") between the Bank and the underwriters
listed on Schedule I thereto (the "Underwriters") which incorporates by
reference this Underwriting Agreement (the "Agreement," which may include the
Terms Agreement if the context so requires). The Notes designated in the Terms
Agreement will be sold in a public offering through the Underwriters. Notes
sold pursuant to the Terms Agreement may include the benefits of a letter of
credit, cash collateral guaranty or account, collateral interest, surety bond,
insurance policy, spread account, reserve account or other similar arrangement
for the benefit of the Noteholders of such Series.
Each Note will represent an obligation of the Owner Trust. The
assets of the Owner Trust will include the Series Certificate which will be
issued by the Chase Credit Card Master Trust (the "Master Trust") concurrently
with the issuance
of the Notes, the Owner Trust Spread Account and the Note Distribution
Account. Each Series Certificate will represent a specified percentage
undivided interest in the Master Trust. The Series Certificate will be issued
in the aggregate principal amount specified in the Terms Agreement pursuant to
a Third Amended and Restated Pooling and Servicing Agreement, dated as of
November 15, 1999, as amended by the First Amendment thereto, dated as of
March 31, 2001 and the Second Amendment thereto, dated as of March 1, 2002 (as
further amended and supplemented as of the date hereof, the "Master Pooling
and Servicing Agreement") by and among the Bank, as Transferor on and after
June 1, 1996, JPMorgan Chase Bank, as Transferor prior to June 1, 1996 and as
Servicer, and The Bank of New York, as trustee (the "Master Trust Trustee"),
as supplemented by the Series Supplement specified in the Terms Agreement (the
"Supplement" and together with the Master Pooling and Servicing Agreement, the
"Pooling and Servicing Agreement"), by and among the Bank, JPMorgan Chase Bank
and the Master Trust Trustee. The Series Certificate will be deposited into
the Owner Trust by the Bank, as Depositor, pursuant to a deposit and
administration agreement between the Bank and the Owner Trust (the "Deposit
and Administration Agreement") on or before the Closing Date. The assets of
the Master Trust include, among other things, certain amounts due on a
portfolio of MasterCard(R) and VISA(R) revolving credit card accounts of the
Bank (the "Receivables"). To the extent not defined herein, capitalized terms
used herein have the meanings assigned to such terms in the Indenture. Unless
otherwise stated herein or in the Terms Agreement, as the context otherwise
requires or if such term is otherwise defined in the Indenture, each
capitalized term used or defined herein or in the Terms Agreement shall relate
only to the Notes designated in the Terms Agreement and no other Notes issued
by the Owner Trust.
Section 1. Representations and Warranties of the Bank. Upon the
execution of the Terms Agreement, the Bank represents and warrants to the
Underwriters that:
(a) The Bank has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement
on Form S-3 (having the registration number stated in the Terms
Agreement), including a form of prospectus, relating to the Series
Certificate and the Notes. Such registration statement, as amended at the
time it was declared effective by the Commission, including all material
incorporated by reference therein, including all information contained in
any Additional Registration Statement (as defined herein) and deemed to
be part of such registration statement as of the time such Additional
Registration Statement (if any) was declared effective by the Commission
pursuant to the General Instructions of the Form on
2
which it was filed and including all information (if any) deemed to be a
part of such registration statement as of the time it was declared
effective by the Commission pursuant to Rule 430A(b) ("Rule 430A(b)")
under the Act (such registration statement, the "Initial Registration
Statement") has been declared effective by the Commission. If any
post-effective amendment has been filed with respect to the Initial
Registration Statement, prior to the execution and delivery of the Terms
Agreement, the most recent such amendment has been declared effective by
the Commission. If (i) an additional registration statement, including
the contents of the Initial Registration Statement incorporated by
reference therein and including all information (if any) deemed to be a
part of such additional registration statement pursuant to Rule
430A(b)(the "Additional Registration Statement") relating to the Series
Certificate and the Notes has been filed with the Commission pursuant to
Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to Rule 462(b), then the Series
Certificate and the Notes have been duly registered under the Act
pursuant to the Initial Registration Statement and such Additional
Registration Statement or (ii) an Additional Registration Statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to Rule 462(b), then upon such
filing the Series Certificate and the Notes will have been duly
registered under the Act pursuant to the Initial Registration Statement
and such Additional Registration Statement. If the Bank does not propose
to amend the Initial Registration Statement or, if an Additional
Registration Statement has been filed and the Bank does not propose to
amend it and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of the Terms Agreement, the most recent amendment (if any) to
each such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
under the Act or, in the case of any Additional Registration Statement,
Rule 462(b). The Initial Registration Statement and any Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration Statement."
Copies of the Registration Statements, together with any post-effective
amendments have been furnished to the Underwriters. The Bank proposes to
file with the Commission pursuant to Rule 424 ("Rule 424") under the Act
a supplement (the "Prospectus Supplement") to the form of prospectus
included in a Registration Statement (such prospectus, in the form it
3
appears in a Registration Statement or in the form most recently revised
and filed with the Commission pursuant to Rule 424 is hereinafter
referred to as the "Basic Prospectus") relating to the Series Certificate
and the Notes and the plan of distribution thereof. The Basic Prospectus
and the Prospectus Supplement, together with any amendment thereof or
supplement thereto, is hereinafter referred to as the "Final Prospectus."
Except to the extent that the Underwriters shall agree in writing to a
modification, the Final Prospectus shall be in all substantial respects
in the form furnished to the Underwriters prior to the execution of the
relevant Terms Agreement, or to the extent not completed at such time,
shall contain only such material changes as the Bank has advised the
Underwriters, prior to such time, will be included therein. Any
preliminary form of the Prospectus Supplement which has heretofore been
filed pursuant to Rule 424 is hereinafter called a "Preliminary Final
Prospectus;"
(b) The Initial Registration Statement, including such amendments
thereto as may have been required on the date of the Terms Agreement, and
the Additional Registration Statement (if any), relating to the Series
Certificate or Notes, have been filed with the Commission and such
Initial Registration Statement as amended, and the Additional
Registration Statement (if any), have become effective. No stop order
suspending the effectiveness of the Initial Registration Statement or the
Additional Registration Statement (if any) has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Bank, threatened by the Commission;
(c) The Initial Registration Statement conforms, and any amendments
or supplements thereto and the Final Prospectus will conform, in all
material respects to the requirements of the Act and the Trust Indenture
Act of 1939 and the Rules and Regulations thereunder, and do not and will
not, as of the applicable effective date as to the Initial Registration
Statement and any amendment thereto, as of the applicable filing date as
to the Final Prospectus and any supplement thereto, and as of the Closing
Date, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Additional Registration
Statement (if any) and the Initial Registration Statement conform, in all
material respects to the requirements of the Act, and do not and will
not, as of the applicable effective date as to the Addi-
4
tional Registration Statement, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall apply only during
the period that a prospectus relating to the Notes or the Series
Certificate is required to be delivered under the Act by dealers in
connection with the initial public offering of such Series Certificate or
Notes (such period being hereinafter sometimes referred to as the
"prospectus delivery period"); provided, further, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Bank by or on behalf of the Underwriters
specifically for use in connection with the preparation of a Registration
Statement and the Final Prospectus;
(d) As of the Closing Date, the representations and warranties of
the Bank, as Transferor, in the Pooling and Servicing Agreement and the
Supplement and as Depositor in the Deposit and Administration Agreement
will be true and correct;
(e) The Bank has been duly organized and is validly existing as a
national bank in good standing under the laws of the United States, with
power and authority to own its properties and conduct its business as
described in the Final Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of
the Bank and its subsidiaries, taken as a whole;
(f) The Series Certificate has been duly authorized, and, when
issued and delivered pursuant to the Pooling and Servicing Agreement,
duly authenticated by the Master Trust Trustee and deposited into the
Owner Trust in exchange for the Notes, will be duly and validly executed,
issued and delivered and entitled to the benefits provided by the Pooling
and Servicing Agreement and the Supplement; the Notes have been duly
authorized, and, when executed, duly authenticated by the Indenture
Trustee and delivered pursuant to the Indenture, and paid for by the
Underwriters in accordance with the terms of the
5
Indenture and the Terms Agreement, the Notes will be duly and validly
executed, issued and delivered and will constitute legal, valid and
binding obligations of the Owner Trust, enforceable against the Owner
Trust in accordance with their terms, except to the extent that the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, conservatorship, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights as such laws would
apply in the event of the insolvency, liquidation or reorganization or
other similar occurrence with respect to the Owner Trust or in the event
of any moratorium or similar occurrence affecting the Owner Trust and to
general principles of equity; and the Series Certificate, the Pooling and
Servicing Agreement, the Supplement, the Notes and the Indenture conform
to the descriptions thereof in the Final Prospectus in all material
respects;
(g) When executed and delivered by the parties thereto, the Owner
Trust Agreement will constitute a legal, valid and binding obligation of
the Bank, enforceable against the Bank in accordance with its terms,
except to the extent that the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, conservatorship, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights as such laws would apply in the event of the insolvency,
liquidation or reorganization or other similar occurrence with respect to
the Bank or in the event of any moratorium or similar occurrence
affecting the Bank and to general principles of equity;
(h) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required to be obtained or
made by the Bank for the consummation of the transactions contemplated by
this Agreement, the Terms Agreement, the Deposit and Administration
Agreement, the Pooling and Servicing Agreement or the Supplement except
such as have been obtained and made under the Act, such as may be
required under state securities laws and the filing of any financing
statements required to perfect the Master Trust's interest in the
Receivables;
(i) The Bank is not in violation of its Articles of Association or
By-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or instrument
to which it is a party or by which it or its properties is bound which
would have a material
6
adverse effect on the transactions contemplated herein, in the Pooling
and Servicing Agreement or the Supplement. The execution, delivery and
performance of this Agreement, the Terms Agreement, the Pooling and
Servicing Agreement, the Supplement and the Deposit and Administration
Agreement, and the issuance and deposit of the Series Certificate and
issuance and sale of the Notes and compliance with the terms and
provisions thereof will not result in a breach or violation of any of the
terms of, or constitute a default under, any statute, rule, regulation or
order of any governmental agency or body or any court having jurisdiction
over the Bank or any of its properties or any material agreement or
instrument to which the Bank is a party or by which the Bank is bound or
to which any of the properties of the Bank is subject, or the Articles of
Association or By-laws of the Bank except for any such breaches or
violations or defaults as would not individually or in the aggregate have
a material adverse effect on the transactions contemplated herein, in the
Pooling and Servicing Agreement and the Supplement and in the Indenture
and the Deposit and Administration Agreement;
(j) Other than as set forth or contemplated in the Final Prospectus,
there are no legal or governmental proceedings pending or, to the
knowledge of the Bank, threatened to which any of the Bank or its
subsidiaries is or may be a party or to which any property of the Bank or
its subsidiaries is or may be the subject which, if determined adversely
to the Bank, could individually or in the aggregate reasonably be
expected to have a material adverse effect on the Bank's credit card
business or on the interests of the holders of the Series Certificate or
the Notes; and there are no contracts or other documents of a character
required to be filed as an exhibit to the Initial Registration Statement
or the Additional Registration Statement (if any) or to be described in
the Initial Registration Statement, the Additional Registration Statement
(if any) or the Basic Prospectus which are not filed or described as
required; and
(k) Each of this Agreement and the Terms Agreement has been duly
authorized, executed and delivered by the Bank.
Section 2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the covenants, representations and warranties herein set
forth, the Bank agrees to sell to the Underwriters, and the Underwriters agree
to purchase from the Bank, the principal amount of Notes set forth opposite
each Underwriter's name
7
in Schedule I to the Terms Agreement. The purchase price for the Notes shall
be as set forth in the Terms Agreement.
The Bank acknowledges and agrees that ▇.▇. ▇▇▇▇▇▇ Securities Inc.
may sell Notes to any of its affiliates, and that any such affiliates may sell
such Notes to ▇.▇. ▇▇▇▇▇▇ Securities Inc.
Section 3. Delivery and Payment. Unless otherwise provided in the
Terms Agreement, payment for Notes shall be made to the Bank or to its order
by wire transfer of same day funds at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ in New York, New York at 10:00 A.M., New York City time, on the
Closing Date (as hereinafter defined) specified in the Terms Agreement, or at
such other time on the same or such other date as the Underwriters and the
Bank may agree upon. The time and date of such payment for the Notes as
specified in the Terms Agreement are referred to herein as the "Closing Date."
As used herein, the term "Business Day" means any day other than a day on
which banks are permitted or required to be closed in New York City.
Unless otherwise provided in the Terms Agreement, payment for the
Notes shall be made against delivery to the Underwriters of the Notes
registered in the name of Cede & Co. as nominee of The Depository Trust
Company and in such denominations as the Underwriters shall request in writing
not later than two full Business Days prior to the Closing Date. The Bank
shall make the Notes available for inspection by the Underwriters in New York,
New York not later than one full Business Day prior to the Closing Date.
Section 4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public, which may
include selected dealers, as set forth in the Final Prospectus.
Section 5. Covenants of the Bank. The Bank covenants and agrees with
the Underwriters that upon the execution of the Terms Agreement:
(a) Promptly following the execution of such Terms Agreement, the
Bank will prepare a Prospectus Supplement relating to the issuance of the
Series Certificate and the Notes, setting forth the amount of Notes
covered thereby and the terms thereof not otherwise specified in the
Basic Prospectus,
8
the price at which such Notes are to be purchased by the Underwriters,
the initial public offering price, the selling concessions and
allowances, and such other information as the Bank deems appropriate. The
Bank will file such Prospectus Supplement with the Commission pursuant to
Rule 424 within the time prescribed therein and will provide evidence
satisfactory to the Underwriters of such timely filing. In addition, to
the extent that the Underwriters (i) have provided to the Bank Collateral
Term Sheets (as defined below) that the Underwriters have provided to
prospective investors, the Bank will file such Collateral Term Sheets as
an exhibit to a report on Form 8-K within two business days of its
receipt thereof, or (ii) have provided to the Bank Structural Term Sheets
or Computational Materials (each as defined below) that such Underwriters
have provided to a prospective investor, the Bank will file or cause to
be filed with the Commission a report on Form 8-K containing such
Structural Term Sheet and Computational Materials, as soon as reasonably
practicable after the date of this Agreement, but in any event, not later
than the date on which the Final Prospectus is filed with the Commission
pursuant to Rule 424.
(b) During the prospectus delivery period, before filing any
amendment or supplement to the Initial Registration Statement, the
Additional Registration Statement (if any) or the Final Prospectus, the
Bank will furnish to the Underwriters copies of the proposed amendment or
supplement for review and will not file any such proposed amendment or
supplement to which any Underwriter reasonably objects.
(c) During the prospectus delivery period, the Bank will advise the
Underwriters promptly after it receives notice thereof, (i) when any
amendment to any Registration Statement shall have become effective, (ii)
of any request by the Commission for any amendment or supplement to any
Registration Statement or the Final Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv) of
the receipt by the Bank of any notification with respect to any
suspension of the qualification of the Notes for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and will use its best efforts to prevent the issuance of any
9
such stop order or notification and, if any is issued, will promptly use
its best efforts to obtain the withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any event
occurs as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Final Prospectus to comply
with the Act, the Bank promptly will prepare and file with the
Commission, an amendment or a supplement which will correct such
statement or omission or effect such compliance.
(e) The Bank will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and will continue such
qualification in effect so long as reasonably required for distribution
of the Notes; provided, however, that the Bank shall not be obligated to
qualify to do business in any jurisdiction in which it is not currently
so qualified; and provided, further, that the Bank shall not be required
to file a general consent to service of process in any jurisdiction.
(f) The Bank will furnish to each Underwriter, without charge, two
copies of each Registration Statement (including exhibits thereto), one
of which will be signed, and to each Underwriter conformed copies of each
Registration Statement (without exhibits thereto) and, during the
prospectus delivery period, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as each
Underwriter may reasonably request.
(g) For a period from the date of this Agreement until the
retirement of the Notes, or until such time as the Underwriters shall
cease to maintain a secondary market in the Notes, whichever first
occurs, the Bank will deliver to each Underwriter (i) the annual
statements of compliance pursuant to the Indenture and the Pooling and
Servicing Agreement, (ii) the annual independent certified public
accountants' reports furnished to the Master Trust Trustee, (iii) all
documents required to be distributed to Certificateholders of the Master
Trust and to Noteholders of the Owner Trust and (iv) all docu-
10
ments filed with the Commission pursuant to the Exchange Act or any order
of the Commission thereunder, in each case as provided to the Indenture
Trustee, Master Trust Trustee or filed with the Commission, as soon as
such statements and reports are furnished to the Indenture Trustee,
Master Trust Trustee or filed or, if an affiliate of the Bank is not the
Servicer, as soon thereafter as practicable.
(h) The Bank will pay all expenses incident to the performance of
its obligations under this Agreement, including without limitation: (i)
expenses of preparing, printing and reproducing each Registration
Statement, the Preliminary Final Prospectus, the Final Prospectus, this
Agreement, the Terms Agreement, the Pooling and Servicing Agreement, the
Indenture, the Deposit and Administration Agreement, the Supplement, the
Series Certificate, and the Notes, (ii) the cost of delivering the Notes
to the Underwriters, (iii) any fees charged by investment rating agencies
for the rating of the Series Certificate and the Notes, (iv) the
Indenture Trustee's and the Owner Trustee's fees and the reasonable fees
and disbursements of the counsel thereto; and (v) the reasonable expenses
and costs (not to exceed the amount specified in the Terms Agreement)
incurred in connection with "blue sky" qualification of the Notes for
sale in those states designated by the Underwriters and the printing of
memoranda relating thereto (it being understood that, except as specified
in this paragraph (h) and in Sections 8 and 9 hereof, the Underwriters
will pay all of their costs and expenses, including the fees of counsel
to the Underwriters, transfer taxes on resale of any Notes by them and
advertising expenses connected with any offers that they may make).
(i) To the extent, if any, that the rating provided with respect to
the Series Certificate or the Notes by the rating agency or agencies that
initially rate the Series Certificate or the Notes is conditional upon
the furnishing of documents or the taking of any other actions by the
Bank, the Bank shall furnish such documents and take any such other
actions.
(j) The Bank will cause the Owner Trust to make generally available
to Noteholders and to the Underwriters as soon as practicable an earnings
statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Owner Trust occurring after the effective
date of the Initial Registration Statement (or, if later, the effective
date of the Additional
11
Registration Statement), which shall satisfy the provisions of Section
11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(k) During the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, the Bank will
not offer, sell, contract to sell or otherwise dispose of any credit card
asset-backed securities of the Bank which are substantially similar to
the Notes without the prior written consent of each Underwriter or unless
such securities are referenced in the Terms Agreement.
Section 6. Representations and Warranties of the Underwriters. Each
Underwriter represents, warrants, covenants and agrees with the Bank that:
(a) It either (A) has not provided any potential investor with a
Collateral Term Sheet (that is required to be filed with the Commission
within two business days of first use under the Terms of the Public
Securities Association Letter as described below), or (B) has,
substantially contemporaneously with its first delivery of such
Collateral Term Sheet to a potential investor, delivered such Collateral
Term Sheet to the Bank, which Collateral Term Sheet, if any, is attached
to this Agreement as Exhibit B.
(b) It either (A) has not provided any potential investor with a
Structural Term Sheet or Computational Materials, or (B) has provided any
such Structural Term Sheet or Computational Materials to the Bank, which
Structural Term Sheets and Computational Materials, if any, are attached
to this Agreement as Exhibit C.
(c) It either (A) has not provided any potential investor with a
Series Term Sheet or (B) has provided any Series Term Sheet to the Bank,
which Series Term Sheets, if any, are attached to this Agreement as
Exhibit D.
(d) Each Collateral Term Sheet bears a legend indicating that the
information contained therein will be superseded by the description of
the collateral contained in the Prospectus Supplement and, except in the
case of the initial Collateral Term Sheet, that such information
supersedes the information in all prior Collateral Term Sheets.
12
(e) Each Structural Term Sheet and Series Term Sheet and all
Computational Materials bear a legend substantially as follows (or in
such other form as may be agreed prior to the date of this Agreement):
This information does not constitute either an offer to sell or a
solicitation of an offer to buy any of the securities referred to
herein. Information contained herein is confidential and provided
for information only, does not purport to be complete and should not
be relied upon in connection with any decision to purchase the
securities. This information supersedes any prior versions hereof
and will be deemed to be superseded by any subsequent versions
including, with respect to any description of the securities or the
underlying assets, the information contained in the final Prospectus
and accompanying Prospectus Supplement. Offers to sell and
solicitations of offers to buy the securities are made only by the
final Prospectus and the related Prospectus Supplement.
(f) It (at its own expense) agrees to provide to the Bank any
accountants' letters obtained relating to the Collateral Term Sheets,
Structural Term Sheets and Computational Materials, which accountants'
letters shall be addressed to the Bank.
(g) It has not, and will not, without the prior written consent of
the Bank, provide any Collateral Term Sheets, Structural Term Sheets,
Series Term Sheets or Computational Materials to any investor after the
date of this Agreement.
(h) For purposes of this Agreement, "Collateral Term Sheets" and
"Structural Term Sheets" shall have the respective meanings assigned to
them in the February 13, 1995 letter of Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇ & ▇▇▇▇ on behalf of
▇▇▇▇▇▇, Peabody & Co., Inc. (which letter, and the SEC staff's response
thereto, were publicly available May 20, 1994). "Se-
13
▇▇▇▇ Term Sheet" has the meaning assigned to it in the April 4, 1996
letter of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ on behalf of Greenwood Trust Company (which
letter, and the SEC staff's response thereto, were publicly available
April 5, 1996).
(i) (x) It has not offered or sold, and prior to the date which is
six months after the date of issue of the Notes shall not offer or sell
any Notes to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which do not constitute an
offer to the public in the United Kingdom for the purposes of the Public
Offers of Securities Regulations 1995; (y) it has complied and shall
comply with all applicable provisions of the Financial Services and
Markets ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation to the
Notes in, from or otherwise involving the United Kingdom; and (z) it has
only communicated or caused to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Acts 2000) received by
it in connection with the issue or sale of Notes in circumstances in
which section 21(1) of the Financial Services and Markets ▇▇▇ ▇▇▇▇ does
not apply to the Owner Trust.
Section 7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for Notes on the Closing
Date shall be subject to the accuracy of the representations and warranties of
the Bank contained herein, to the accuracy of the statements of the Bank made
in any Notes pursuant to the terms hereof, to the performance by the Bank of
its obligations hereunder and under the Terms Agreement and to the following
additional conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 in the manner and within the applicable time period
prescribed for such filing by the rules and regulations of the Commission
under the Act and in accordance with Section 5(a) of this Agreement; and,
as of the Closing Date, no stop order suspending the effectiveness of any
Registration Statement shall have been issued, and no proceedings for
such purpose shall have been instituted or threatened by the Commission;
and all requests for additional information from the Commission with
respect to any Registration
14
Statement shall have been complied with to the reasonable satisfaction of
the Representative.
(b) Subsequent to the date of this Agreement, there shall not have
occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the
Bank which materially impairs the investment quality of the Notes; (ii)
any suspension or material limitation of trading of securities generally
on the New York Stock Exchange or the American Stock Exchange; (iii) a
declaration of a general moratorium on commercial banking activities in
New York by either Federal or New York State authorities; or (iv) any
material outbreak or declaration of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States
is such as to make it, in the judgment of the Representative,
impracticable to market the Notes on the terms specified herein and the
Terms Agreement.
(c) The Underwriters have received a certificate of a Vice President
or other proper officer of the Bank, dated the Closing Date, in which
such officer, to the best of his knowledge, shall state that (i) the
representations and warranties of the Bank in this Agreement are true and
correct in all material respects, (ii) the Bank has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date, (iii) no stop order suspending
the effectiveness of a Registration Statement has been issued and no
proceedings for that purpose have been instituted or are threatened by
the Commission and (iv) the Final Prospectus does not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(d) The Bank shall have furnished to the Underwriters the opinions
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Bank, dated the Closing
Date, in substantially the forms attached hereto as Exhibit 1 (with
respect to Rule 10b-5 and other matters), Exhibit 2 (with respect to
corporate, New York UCC and FDIC matters relating to the Master Trust,
the Receivables, the Owner Trust, the Series Certificate and the Notes)
and Exhibit 3 (with respect to tax matters), with only such changes as
shall be reasonably satisfactory to the Representative.
15
(e) The Underwriters shall have received from Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, one or more opinions,
each dated the Closing Date, with respect to the validity of the Notes,
the Initial Registration Statement, the Additional Registration Statement
(if any), the Final Prospectus, the Delaware UCC and the Delaware Asset
Backed Securities Facilitation Act, and such other related matters as the
Representative may reasonably require, and the Bank shall have furnished
to such counsel such documents as they request for the purpose of
enabling them to pass on such matters.
(f) At the date of the Terms Agreement and at the Closing Date,
PricewaterhouseCoopers LLP (or such other independent public accountants
as shall be named in the Terms Agreement), certified independent public
accountants for the Bank, shall have furnished to the Underwriters a
letter or letters, dated respectively as of the date of the Terms
Agreement and as of the Closing Date confirming that they are certified
independent public accountants within the meaning of the Act and the
Exchange Act, and the respective applicable published rules and
regulations thereunder and substantially in the form heretofore agreed
and otherwise in form and in substance satisfactory to the Representative
and counsel for the Underwriters.
(g) The Underwriters shall receive evidence satisfactory to it that,
on or before the Closing Date, UCC-1 financing statements have been or
are being filed in the office of the Secretary of State of the State of
Delaware, reflecting (i) the interest of the Master Trust Trustee in the
Receivables and the proceeds thereof, (ii) the interest of the Owner
Trust in the Series Certificate and (iii) the interest of the Indenture
Trustee, for the benefit of the holders of the Notes, in the Series
Certificate.
(h) The Underwriters shall have received from ▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, LLP, counsel to the Master Trust Trustee, an opinion, dated the
Closing Date, to the effect that:
(i) The Master Trust Trustee has been duly organized and is
validly existing as a banking corporation under the laws of New York
and has
16
the corporate power and authority to conduct business and affairs as
a trustee.
(ii) The Master Trust Trustee has the corporate power and
authority to perform the duties and obligations of trustee under,
and to accept the trust contemplated by, the Pooling and Servicing
Agreement, and the Supplement.
(iii) Each of the Pooling and Servicing Agreement and the
Supplement has been duly authorized, executed, and delivered by the
Master Trust Trustee.
(iv) The Series Certificate has been duly executed and
authenticated by the Master Trust Trustee.
(v) Neither the execution nor the delivery by the Master Trust
Trustee of the Pooling and Servicing Agreement and the Supplement
nor the consummation of any of the transactions contemplated thereby
require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect
to, any governmental authority or agency under any existing federal
or state law governing the banking or trust powers of the Master
Trust Trustee.
(vi) The execution and delivery of the Pooling and Servicing
Agreement and the Supplement by the Master Trust Trustee and the
performance by the Master Trust Trustee of their respective terms do
not conflict with or result in a violation of (x) any law or
regulation of any governmental authority or agency under any
existing federal or state law governing the banking or trust powers
of the Master Trust Trustee, or (y) the Certificate of Incorporation
or By-laws of the Master Trust Trustee.
(i) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, special counsel to the Owner Trustee, reasonably
satisfactory to the Underwriters and their counsel, dated the Closing
Date, in substantially the form attached hereto as Exhibit 4, with only
such changes as shall be reasonably satisfactory to the Representative.
17
(j) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, special counsel to the Owner Trust, reasonably
satisfactory to the Underwriters and their counsel, dated the Closing
Date, in substantially the form attached hereto as Exhibit 5, with only
such changes as shall be reasonably satisfactory to the Representative.
(k) The Underwriters shall have received an opinion of ▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇, LLP, special counsel to the Indenture Trustee, reasonably
satisfactory to the Underwriters and their counsel, dated the Closing
Date, in substantially the form attached hereto as Exhibit 5, with only
such changes as shall be reasonably satisfactory to the Representative.
(l) The Underwriters shall have received evidence satisfactory to
them that the Series Certificate and the Notes shall be rated in
accordance with the Terms Agreement by the Rating Agency.
(m) The Underwriters shall have received a certificate of a Vice
President or other proper officer of the Servicer, dated the Closing
Date, in which such officer, to the best of his or her knowledge, shall
state that the representations and warranties of the Servicer in the
Pooling and Servicing Agreement and the Supplement are true and correct.
(n) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters in all material respects and the Underwriters and
counsel for the Underwriters shall have received such information,
certificates and documents as the Underwriters or counsel for the
Underwriters may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and their counsel, this
Agreement and all obligations of the Underwriters hereunder may be cancelled
at, or at any time prior to, the Closing Date by the Underwriters. Notice of
such cancellation shall be given to the Bank in writing or by telephone or
facsimile confirmed in writing.
18
Section 8. Reimbursement of Underwriters' Expenses. If the sale of
the Notes provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 (other than the
condition set forth in paragraph (b) of Section 7) is not satisfied, or
because of any refusal, inability or failure on the part of the Bank to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by the Underwriters, the Bank will reimburse the
Underwriters for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Notes and upon demand the Bank
shall pay the full amount thereof to the Representative.
19
Section 9. Indemnification and Contribution. (a) The Bank agrees to
indemnify and hold harmless the Underwriters, each of the directors thereof,
each of the officers who are involved in the Offering and each person, if any,
who controls each Underwriter within the meaning of the Act against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement as
originally filed or in any amendment thereof, or in any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by it in
connection with investigating or preparing to defend or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that (i) the Bank will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made in any of such documents in reliance upon and in
conformity with written information furnished to the Bank by or on behalf of
the Underwriters specifically for use therein, and (ii) such indemnity with
respect to any Preliminary Final Prospectus shall not inure to any benefit of
any Underwriter (or any person controlling any of the Underwriters) from whom
the person asserting any such loss, claim, damage or liability purchased the
Notes which are the subject thereof if such person did not receive a copy of
the Final Prospectus (or the Final Prospectus as supplemented) at or prior to
the confirmation of the sale of such Notes to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in such Preliminary Final Prospectus was corrected in
the Final Prospectus (or the Final Prospectus as supplemented). This indemnity
agreement will be in addition to any liability which the Bank may otherwise
have.
(b) Each Underwriter agrees to indemnify and hold harmless the Bank,
each of the directors thereof, each of the officers who signs a Registration
Statement, and each person who controls the Bank within the meaning of the
Act, to
20
the same extent as the foregoing indemnities from the Bank to the
Underwriters, but only with reference to written information furnished to the
Bank by or on behalf of each Underwriter specifically for use in the
preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which each
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 9 unless the indemnifying party is
materially prejudiced thereby. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to appoint counsel
satisfactory to such indemnified party to represent the indemnified party in
such action; provided, however, that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel
to defend such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to appoint counsel to defend such action and approval by the
indemnified party of such counsel, the indemnifying party will not be liable
to such indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Underwriter(s)
being indemnified in the case of paragraph (a) of this Section 9, representing
the indemnified parties under such paragraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
21
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 Notes (taking into account the total
proceeds of the offering received by the Bank and the total underwriting
discounts and commissions received by the Underwriters), their relative
knowledge and access to information concerning the matter with respect to
which the claim was asserted, the opportunity to correct and prevent any
statement or omission, and any other equitable considerations appropriate
under the circumstances. The Bank and the Underwriters agree that it would not
be equitable if the amount of such contribution were determined by pro rata or
per capita allocation. None of the Underwriters nor any person controlling any
Underwriter shall be obligated to make contribution hereunder which in the
aggregate exceeds the total public offering price of the Notes purchased by
such Underwriter under this Agreement, less the aggregate amount of any
damages which any Underwriter and its controlling persons have otherwise been
required to pay in respect of the same claim or any substantially similar
claim.
Section 10. Default by an Underwriter. If, on the Closing Date, any
Underwriter or Underwriters default in the performance of its or their
obligations under this Agreement, the Representative may make arrangements for
the purchase of such Notes by other persons satisfactory to the Bank and the
Representative, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, then each remaining non-defaulting Underwriter
shall be severally obligated to purchase the Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase on the Closing Date
in the respective proportions which the principal amount of Notes set forth
opposite the name of each remaining non-defaulting Underwriter in Schedule I
to the Terms Agreement bears to the aggregate principal amount of Notes set
forth opposite the names of all the remaining non-defaulting Underwriters in
Schedule I to the Terms Agreement; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase
22
any of the Notes on the Closing Date if the aggregate principal amount of
Notes which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds one-eleventh of the aggregate principal amount
of the Notes to be purchased on the Closing Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase in total more
than 110% of the principal amount of the Notes which it agreed to purchase on
the Closing Date pursuant to the terms of Section 2. If the foregoing maximums
are exceeded and the remaining Underwriters or other underwriters satisfactory
to the Representative and the Bank do not elect to purchase the Notes which
the defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Bank, except that the provisions of Section 11 shall not
terminate and shall remain in effect. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
otherwise requires, any party not listed in Schedule I to the Terms Agreement
who, pursuant to this Section 10, purchases Notes which a defaulting
Underwriter agreed but failed to purchase.
Section 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 Notes. 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇; if sent to the Bank,
will be mailed, delivered or telecopied and confirmed to them care of Chase
Manhattan Bank USA, National Association, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President.
Section 13. Secondary Trust or Special Purpose Vehicle. Each
Underwriter severally represents that it will not, at any time that such
Underwriter is
23
acting as an "underwriter" (as defined in Section 2(11) of the Act) with
respect to the Notes, transfer, deposit or otherwise convey any Notes into a
trust or other type of special purpose vehicle that issues securities or other
instruments backed in whole or in part by, or that represents interests in,
such Notes without the prior written consent of the Bank.
Section 14. Miscellaneous. This Agreement is to be governed by, and
construed in accordance with, the laws of the State of New York; it may be
executed in two or more counterparts, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one
and the same instrument. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns
and the officers and directors and controlling persons referred to in Section
9 hereof, and no other person shall have any right or obligation hereunder.
This Agreement supersedes all prior agreements and understandings between the
parties relating to the subject matter hereof, other than those contained in
the Terms Agreement executed in connection herewith. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
Section 15. Effectiveness. This Agreement shall become effective
upon execution and delivery of the Terms Agreement.
24
If you are in agreement with the foregoing, please sign the
counterpart hereof and return it to the Bank, whereupon this letter and your
acceptance shall become a binding agreement among the Bank and the
Underwriters.
Very truly yours,
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as representative of the
Underwriters named in
Schedule I to the Terms
Agreement
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
25