Exhibit 10.1
ASSIGNMENT No. 27 OF RECEIVABLES IN ADDITIONAL ACCOUNTS, (this
"Assignment") dated as of August 1, 2003, by and between CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION, a national banking corporation organized and existing
under the laws of the United States of America ("Chase USA"), and THE BANK OF
NEW YORK, a banking corporation organized and existing under the laws of the
State of New York (the "Trustee") pursuant to the Pooling and Servicing
Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Chase USA, as Transferor on and after June 1, 1996, JPMorgan
Chase Bank, as Transferor prior to June 1, 1996 and as Servicer, and the Trustee
are parties to the 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
(hereinafter as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, Chase USA
wishes to designate Additional Accounts of Chase USA to be included as Accounts
and to convey the Receivables of such Additional Accounts, whether now existing
or hereafter created, to the Trust as part of the corpus of the Trust (as each
such term is defined in the Pooling and Servicing Agreement); and
WHEREAS, the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, Chase USA and the Trustee hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings
when used herein, unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, August 1, 2003.
"Notice Date" shall mean, with respect to the Additional Accounts
designated hereby, July 9, 2003.
2. Designation of Additional Accounts. Chase USA shall deliver
to the Trustee not later than five Business Days after the Addition Date, a
computer file or microfiche list containing a true and complete list of each
MasterCard and VISA account which as of the Addition Date shall be deemed to be
an Additional Account, such accounts being identified by account number and by
the amount of Receivables in such accounts as of the close of business on the
Addition Date. Such list shall be delivered five Business Days after the date of
this Assignment and shall be marked as Schedule 1 to this Assignment and, as of
the Addition Date, shall be incorporated into and made a part of this
Assignment.
3. Conveyance of Receivables.
X. Xxxxx USA does hereby transfer, assign, set-over and
otherwise convey to the Trustee on behalf of the Trust for the benefit of the
Certificateholders, without recourse on and after the Addition Date, all right,
title and interest of Chase USA in and to the Receivables now existing and
hereafter created in the Additional Accounts designated hereby, all monies due
or to become due with respect thereto (including all Finance Charge Receivables)
and all proceeds of such Receivables, Recoveries, Interchange, Insurance
Proceeds relating to such Receivables and the proceeds of any of the foregoing.
B. In connection with such transfer, Chase USA agrees to
record and file, at its own expense, a financing statement with respect to the
Receivables now existing and hereafter created in the Additional Accounts
designated hereby (which may be a single financing statement with respect to all
such Receivables) for the transfer of accounts as defined in Section 9-102 of
the UCC as in effect in the State of New York meeting the requirements of
applicable state law in such manner and such jurisdictions as are necessary to
perfect the assignment of such Receivables to the Trustee on behalf of the Trust
for the benefit of the Certificateholders (the "Secured Party"), and to deliver
a file-stamped copy of such financing statement or other evidence of such filing
(which may, for purposes of this Section 3, consist of telephone confirmation of
such filing) to the Trustee on or prior to the date of this Assignment.
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C. It is the intention of the parties hereto that all
transfers of Receivables to the Trust pursuant to this Assignment be subject to,
and be treated in accordance with, the Delaware Act and each of the parties
hereto agrees that this Assignment has been entered into by the parties hereto
in express reliance upon the Delaware Act. For purposes of complying with the
requirements of the Delaware Act, each of the parties hereto hereby agrees that
any property, assets or rights purported to be transferred, in whole or in part,
by Chase USA pursuant to this Assignment shall be deemed to no longer be the
property, assets or rights of Chase USA. The parties hereto acknowledge and
agree that each such transfer is occurring in connection with a "securitization
transaction" within the meaning of the Delaware Act.
D. In connection with such transfer, Chase USA further agrees,
at its own expense, on or prior to the date of this Assignment to indicate in
its computer files that Receivables created in connection with the Additional
Accounts designated hereby have been transferred to the Trust pursuant to this
Assignment for the benefit of the Certificateholders.
X. Xxxxx USA hereby grants to the Secured Party a security
interest in all of Chase USA's right, title and interest in, to and under the
Receivables now existing and hereafter created in the Additional Accounts
designated hereby, all monies due or to become due with respect to such
Receivables, Insurance Proceeds relating to such Receivables, Recoveries,
Interchange and the proceeds to any of the foregoing to secure a loan in an
amount equal to the unpaid principal amount of the Investor Certificates issued
or to be issued pursuant to the Pooling and Servicing Agreement and the
interests accrued at the related Certificate Rates, and this Assignment shall
constitute a security agreement under applicable law. Chase USA shall execute
continuation statements and provide other further assurances to maintain the
perfection and priority of such security interest of the Secured Party.
4. Acceptance by Trustee. The Trustee hereby acknowledges its
acceptance on behalf of the Trust for the benefit of the Certificateholders of
all right, title and interest previously held by Chase USA in and to the
Receivables now existing and hereafter created, and declares that it shall
maintain such right, title and interest, upon the Trust herein set forth, for
the benefit of all Certificateholders.
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5. Representations and Warranties of Chase USA. Chase USA
hereby represents and warrants to the Secured Party as of the Addition Date:
A. Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of Chase USA enforceable
against Chase USA in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and the rights of creditors of banking associations
and except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
B. Eligibility of Accounts and Receivables. Each Additional
Account designated hereby is an Eligible Account and each Receivable in such
Additional Account is an Eligible Receivable.
C. Selection Procedures. No selection procedures believed by
Chase USA to be materially adverse to the interests of the Investor
Certificateholders were utilized in selecting the Additional Accounts designated
hereby from the available Eligible Accounts in the Bank Portfolio.
D. Insolvency. Chase USA is not insolvent and, after giving
effect to the conveyance set forth in Section 3 of this Assignment, will not be
insolvent.
E. Transfer. This Assignment constitutes either: (i) a valid
transfer and assignment to the Trust of all right, title and interest of Chase
USA in and to Receivables now existing and hereafter created in the Additional
Accounts designated hereby, and all proceeds (as defined in the UCC) of such
Receivables and Insurance Proceeds relating thereto, and such Receivables and
any proceeds thereof and Insurance Proceeds relating thereto will be held by the
Secured Party free and clear of any Lien of any Person claiming through or under
Chase USA or any of its Affiliates except for (x) Liens permitted under
subsection 2.5(b) of the Pooling and Servicing Agreement, (y) the interest of
the holder of the Transferor Certificate and (z) Chase USA's right to receive
interest accruing on, and investment earnings in respect of, the Finance Charge
Account and the Principal Account as provided in the Pooling and Servicing
Agreement; or (ii) a valid and continuing security interest (as defined in the
UCC) in the Receivables now existing or hereafter created in the Additional
Accounts in favor of the Secured Party, the proceeds (as defined in the UCC)
thereof and Insurance Proceeds relating thereto, upon the conveyance of such Re-
ceivables to the Trust, which security interest is prior to all other Liens, and
is enforceable against creditors of and purchasers from Chase USA, and which
will be enforceable with respect to the Receivables thereafter created in
respect of Additional Accounts designated hereby, the proceeds (as defined in
the UCC) thereof and Insurance Proceeds relating thereto, upon such creation;
and (iii) if this Assignment constitutes the grant of a security interest to the
Secured Party in such property, upon the filing of a financing statement
described in Section 3 of this Assignment with respect to the Additional
Accounts designated hereby and in the case of the Receivables of such Addi-
tional Accounts thereafter created and the proceeds (as defined in the UCC)
thereof, and Insurance Proceeds relating to such Receivables, upon such
creation, the Secured Party shall have a first priority perfected security
interest in such property (subject to Section 9-315 the UCC as in effect in the
State of Delaware), except for Liens permitted under subsection 2.5(b) of the
Pooling and Servicing Agreement. Chase USA has caused or will have caused,
within ten days, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable law in
order to perfect the security interest in the Receivables granted to the Secured
Party hereunder. The Receivables constitute "accounts" within the meaning of the
applicable UCC.
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F. Other Liens. Other than the security interest granted to
the Secured Party pursuant to this Assignment, Chase USA has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of the
Receivables. Chase USA has not authorized the filing of and is not aware of any
financing statements against Chase USA that include a description of collateral
covering the Receivables other than any financing statement (i) relating to the
security interest granted to the Secured Party hereunder, (ii) that has been
terminated, or (iii) that names The Bank of New York as secured party. Chase USA
is not aware of any judgment or tax lien filings against Chase USA. Chase USA
owns and has good and marketable title to the Receivables free and clear of any
Lien, claim or encumbrance of any Person.
G. Breach of Representations and Warranties. The provision set
forth in Section 2.4(d) of the Pooling and Servicing Agreement shall be
applicable to any breach of the representations and warranties of this Section 5
with respect to any Receivable.
6. Conditions Precedent. The acceptance by the Trustee set forth in
Section 4 and the amendment of the Pooling and Servicing Agreement set forth in
Section 7 are subject to the satisfaction, on or prior to the Addition Date, of
the following conditions precedent:
A. Officer's Certificate. Chase USA shall have delivered to
the Trustee a certificate of a Vice President or more senior officer
substantially in the form of Schedule 2 hereto, certifying that (i) all
requirements set forth in Section 2.6 of the Pooling and Servicing
Agreement for designating Additional Accounts and conveying the
Principal Receivables of such Account, whether now existing or
hereafter created, have been satisfied and (ii) each of the representa-
tions and warranties made by Chase USA in Section 5 is true and correct
as of the Addition Date. The Trustee may conclusively rely on such
Officer's Certificate, shall have no duty to make inquiries with regard
to the matters set forth therein, and shall incur no liability in so
relying.
B. Opinion of Counsel. Chase USA shall have delivered to the
Trustee an Opinion of Counsel with respect to the Additional Accounts
designated hereby substantially in the form of Exhibit E to the Pooling
and Servicing Agreement.
7. Amendment of the Pooling and Servicing Agreement. The Pooling and
Servicing Agreement is hereby amended to provide that all references therein to
the "Pooling and Servicing Agreement," to "this Agreement" and "herein" shall be
deemed from and after the Addition Date to be a dual reference to the Pooling
and Servicing Agreement as supplemented by this Assignment and by Assignment No.
1 of Receivables in Additional Accounts, dated as of July 1, 1996, Assignment
No. 2 of Receivables in Additional Accounts, dated as of September 1, 1996,
Assignment No.3 of Receivables in Additional Accounts, dated as of December 1,
1997, Assignment No. 4 of Receivables in Additional Accounts, dated as of
February 1, 1998, Assignment No. 5 of Receivables in Additional Accounts, dated
as of April 1, 1998, Assignment No. 6 of Receivables in Additional Accounts,
dated as of August 1, 1998, Assignment No. 7 of Receivables in Additional
Accounts, dated as of November 1, 1998, Assignment No. 8 of Receivables in
Additional Accounts, dated as of February 1, 1999, Assignment No. 9 of
Receivables in Additional Accounts, dated as of April 1, 1999, Assignment No. 10
of Receivables in Additional Accounts, dated as of July 1, 1999, Assignment No.
11 of Receivables in Additional Accounts, dated as of October 1, 1999,
Assignment No. 12 of Receivables in Additional Accounts, dated as of February 1,
2000, Assignment No. 13 of Receivables in Additional Accounts, dated as of April
1, 2000, Assignment No. 14 of Receivables in Additional Accounts, dated as of
May 1, 2000, Assignment No. 15 of Receivables in Additional Accounts, dated as
of August 1, 2000, Assignment No. 16 of Receivables in Additional Accounts,
dated as of July 1, 2001, Assignment No. 17 dated as of September 1, 2001,
Assignment No. 18 of Receivables in Additional Accounts, dated as of November 1,
2001, Assignment No. 19 of Receivables in Additional Accounts, dated as of March
6, 2002, Assignment No. 20 of Receivables in Additional Accounts, dated as of
April 1, 2002, Assignment No. 21 of Receivables in Additional Accounts, dated as
of May 1, 2002, Assignment No. 22 of Receivables in Additional Accounts, dated
as of September 1, 2002, Assignment No. 23 of Receivables in Additional
Accounts, dated as of November 1, 2002, Assignment No. 24 of Receivables in
Additional Accounts, dated as of February 1, 2003, Assignment No. 25 of
Receivables in Additional Accounts, dated as of April 1, 2003, Assignment No. 26
of Receivables in Additional Accounts, dated as of June 1, 2003, Reassignment
No. 1 of Receivables in Removed Accounts, dated as of September 30, 1997 and
Reassignment No. 2 of Receivables in Removed Accounts, dated as of December 1,
1997. Except as expressly amended hereby, all of the representations,
warranties, terms, covenants and conditions to the Pooling and Servicing
Agreement shall remain unamended and shall continue to be, and shall remain, in
full force and effect in accordance with its terms and except as expressly
provided herein shall not constitute or be deemed to constitute a waiver of
compliance with or a consent to noncompliance with any term or provisions of the
Pooling and Servicing Agreement.
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8. Survival. The representations, warranties and covenants of the
parties hereto shall survive the assignment of the Receivables pursuant to this
Assignment and the termination of this Assignment, and shall inure to the
benefit of the Trust. Notwithstanding to the contrary in this Assignment, the
representations and warranties of the Chase USA herein shall not survive after
the tenth (10th ) anniversary of the Addition Date.
9. Waivers and Amendments. This Assignment may be amended, superseded,
canceled, renewed or extended and the terms hereof may be waived, only by a
written instrument signed by authorized representatives of the parties or, in
the case of a waiver, by an authorized representative of the party waiving
compliance and, in all cases, subject to confirmation by each Rating Agency then
rating any Investor Certificates. No such written instrument shall be effective
unless it expressly recites that it is intended to amend, supersede, cancel,
renew or extend this Assignment or to waive compliance with one or more of the
terms hereof, as the case may be. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any such right, power
or privilege, or any single or partial exercise of any such right, power or
privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege.
10. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
11. GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY, CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
12. Tax Treatment. Nothing in this Assignment shall be deemed to
require any securitization transaction involving the Receivables to be treated
as a sale for federal or state income tax purposes or to preclude treatment of
any such securitization transaction as debt for federal or state income tax
purposes.
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IN WITNESS WHEREOF, the undersigned have caused this Assignment of
Receivables in Additional Accounts to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By: /s/Xxxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
Schedule 1
to Assignment of
Receivables in
Additional Accounts
ADDITIONAL ACCOUNTS
