Exhibit 4.1
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
Transferor on and after June 1, 1996,
THE CHASE MANHATTAN BANK,
Transferor prior to June 1, 1996 and Servicer
and
THE BANK OF NEW YORK,
Trustee
on behalf of the Certificateholders
of Chemical Master Credit Card Trust I
_________________________________
SECOND AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1996
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Other Definitional Provisions . . . . . . . . . . . . . . . 20
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES . . . . . . . . . . 22
Section 2.1 Conveyance of Receivables . . . . . . . . . . . . . . . . . 22
Section 2.2 Acceptance by Trustee . . . . . . . . . . . . . . . . . . . 23
Section 2.3 Representations and Warranties of the Transferor . . . . . . 24
Section 2.4 Representations and Warranties of the Transferor Relating
to the Agreement and the Receivables . . . . . . . . . . . 26
Section 2.5 Covenants of the Transferor . . . . . . . . . . . . . . . . 31
Section 2.6 Addition of Accounts . . . . . . . . . . . . . . . . . . . . 33
Section 2.7 Removal of Accounts . . . . . . . . . . . . . . . . . . . . 36
Section 2.8 Discount Option . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES . . . . . . . . . . . . . 39
Section 3.1 Acceptance of Appointment and Other Matters Relating to
the Servicer . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.2 Servicing Compensation . . . . . . . . . . . . . . . . . . . 41
Section 3.3 Representations and Warranties of the Servicer . . . . . . . 41
Section 3.4 Reports and Records for the Trustee . . . . . . . . . . . . 43
Section 3.5 Annual Servicer's Certificate . . . . . . . . . . . . . . . 43
Section 3.6 Annual Independent Accountants' Servicing Report . . . . . . 44
Section 3.7 Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . 44
Section 3.8 Notices to the Transferor . . . . . . . . . . . . . . . . . 45
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS . . . . . . . . . 46
Section 4.1 Rights of Certificateholders . . . . . . . . . . . . . . . . 46
Section 4.2 Establishment of Accounts . . . . . . . . . . . . . . . . . 46
Section 4.3 Collections and Allocations . . . . . . . . . . . . . . . . 48
Section 4.4 Allocations During Funding Period . . . . . . . . . . . . . . 50
Section 4.5 Certain Fees . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES] . . . . . . . . . 52
ARTICLE VI
THE CERTIFICATES . . . . . . . . . . . . 53
Section 6.1 The Certificates . . . . . . . . . . . . . . . . . . . . . 53
Section 6.2 Authentication of Certificates . . . . . . . . . . . . . . 53
Section 6.3 Registration of Transfer and Exchange of Certificates . . 54
Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates . . . . 56
Section 6.5 Persons Deemed Owners . . . . . . . . . . . . . . . . . . 57
Section 6.6 Appointment of Paying Agent . . . . . . . . . .. . . . . . 57
Section 6.7 Access to List of Certificateholders' Names and Addresses 58
Section 6.8 Authenticating Agent . . . . . . . . . . . . . . . . . . . 59
Section 6.9 Tender of Transferor Certificate . . . . . . . . . . . . . 60
Section 6.10 Book-Entry Certificates . . . . . . . . . . . . . . . . . . 62
Section 6.11 Notices to Clearing Agency . . . . . . . . . . . . . . . . 63
Section 6.12 Definitive Certificates . . . . . . . . . . . . . . . . . . 63
Section 6.13 Global Certificate . . . . . . . . . . . . . . . . . . . . 64
Section 6.14 Meetings of Certificateholders . . . . . . . . . . . . . . 64
ARTICLE VII
OTHER MATTERS RELATING
TO THE TRANSFEROR . . . . . . . . . . . . 65
Section 7.1 Liability of the Transferor . . . . . . . . . . . . . . . . 65
Section 7.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Transferor . . . . . . . . . . . . . . 65
Section 7.3 Limitation of Liability . . . . . . . . . . . . . . . . . . 66
Section 7.4 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER . . . . . . . . . . . . 68
Section 8.1 Liability of the Servicer . . . . . . . . . . . . . . . . . 68
Section 8.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer . . . . . . . . . . . . . . . 68
Section 8.3 Limitation of Liability of the Servicer and Others . . . . . 68
Section 8.4 Servicer Indemnification of the Trust and the Trustee . . . 69
Section 8.5 The Servicer Not to Resign . . . . . . . . . . . . . . . . . 70
Section 8.6 Access to Certain Documentation and Information Regarding
the Receivables . . . . . . . . . . . . . . . . . . . . . 70
Section 8.7 Delegation of Duties . . . . . . . . . . . . . . . . . . . . 70
Section 8.8 Examination of Records . . . . . . . . . . . . . . . . . . . 70
ARTICLE IX
PAY OUT EVENTS . . . . . . . . . . . . . 72
Section 9.1 Pay Out Events . . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.2 Additional Rights Upon the Occurrence of Certain Events . . 72
ARTICLE X
SERVICER DEFAULTS . . . . . . . . . . . . 74
Section 10.1 Servicer Defaults . . . . . . . . . . . . . . . . . . . . . 74
Section 10.2 Trustee to Act; Appointment of Successor . . . . . . . . . 76
Section 10.3 Notification to Certificateholders . . . . . . . . . . . . 78
Section 10.4 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 78
ARTICLE XI
THE TRUSTEE . . . . . . . . . . . . . 79
Section 11.1 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . 79
Section 11.2 Certain Matters Affecting the Trustee . . . . . . . . . . . 80
Section 11.3 Trustee Not Liable for Recitals in Certificates . . . . . . 82
Section 11.4 Trustee May Own Certificates . . . . . . . . . . . . . . . 82
Section 11.5 The Servicer to Pay Trustee's Fees and Expenses . . . . . . 82
Section 11.6 Eligibility Requirements for Trustee . . . . . . . . . . . 82
Section 11.7 Resignation or Removal of Trustee . . . . . . . . . . . . . 83
Section 11.8 Successor Trustee . . . . . . . . . . . . . . . . . . . . . 83
Section 11.9 Merger or Consolidation of Trustee . . . . . . . . . . . . 84
Section 11.10 Appointment of Co-Trustee or Separate Trustee . . . . . . 84
Section 11.11 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . 85
Section 11.12 Trustee may Enforce Claims Without Possession of
Certificates . . . . . .. . . . . . . . . . . . . . . . 86
Section 11.13 Suits for Enforcement . . . . . . . . . . . . . . . . . . 86
Section 11.14 Rights of Certificateholders to Direct Trustee . . . . . . 86
Section 11.15 Representations and Warranties of Trustee . . . . . . . . 87
Section 11.16 Maintenance of Office or Agency . . . . . . . . . . . . . 87
ARTICLE XII
TERMINATION . . . . . . . . . . . . . 88
Section 12.1 Termination of Trust . . . . . . . . . . . . . . . . . . . 88
Section 12.2 Optional Purchase . . . . . . . . . . . . . . . . . . . . . 89
Section 12.3 Final Payment with Respect to any Series . . . . . . . . . 89
Section 12.4 Termination Rights of Holder of Transferor Certificate . . 90
Section 12.5 Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 91
ARTICLE XIII
MISCELLANEOUS PROVISIONS . . . . . . . . . . 93
Section 13.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 13.2 Protection of Right, Title and Interest to Trust . . . . . 94
Section 13.3 Limitation on Rights of Certificate . . . . . . . . . . . . 95
Section 13.4 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . 96
Section 13.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 13.6 Severability of Provisions . . . . . . . . . . . . . . . . 97
Section 13.7 Assignment . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 13.8 Certificates Non-Assessable and Fully Paid . . . . . . . . 97
Section 13.9 Further Assurances . . . . . . . . . . . . . . . . . . . . 97
Section 13.10 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . 97
Section 13.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 97
Section 13.12 Third-Party Beneficiaries . . . . . . . . . . . . . . . . 97
Section 13.13 Actions by Certificateholders . . . . . . . . . . . . . . 98
Section 13.14 Rule 144A Information . . . . . . . . . . . . . . . . . . 98
Section 13.15 Merger and Integration . . . . . . . . . . . . . . . . . . 98
Section 13.16 Headings . . . . . . . . . . . . . . . . . . . . . . . . . 98
EXHIBITS
Exhibit A Form of Transferor Certificate
Exhibit B Form of Assignment of Receivables in Additional
Accounts
Exhibit C Form of Monthly Servicer's Certificate
Exhibit D Form of Annual Servicer's Certificate
Exhibit E Form of Opinion of Counsel Regarding Additional
Accounts
Exhibit F Form of Annual Opinion of Counsel
Exhibit G Form of Reassignment of Receivables
Exhibit H Form of Reconveyance of Receivables
SCHEDULES
Schedule 1 List of Accounts [Deemed Incorporated]
SECOND AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT, dated as
of September 1, 1996, by and among CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, a banking corporation organized and existing under the laws of the
United States (formerly known as The Chase Manhattan Bank (USA)), as Transferor
on and after June 1, 1996, THE CHASE MANHATTAN BANK, a banking corporation
organized and existing under the laws of the State of New York (formerly known
as Chemical Bank), as Transferor prior to June 1, 1996 and as Servicer, and THE
BANK OF NEW YORK, a New York banking corporation, as Trustee.
WHEREAS, The Chase Manhattan Bank, as Transferor and Servicer, and
the Trustee are parties to a Pooling and Servicing Agreement, dated as of
October 19, 1995 (the "Original Pooling and Servicing Agreement");
WHEREAS, all of the parties hereto are parties to an Amended and
Restated Pooling and Servicing Agreement, dated as of June 1, 1996 (the
"Amended Pooling and Servicing Agreement"), which amended and restated the
Original Pooling and Servicing Agreement in its entirety); and
WHEREAS, the parties desire to amend and restate the Amended Pooling
and Servicing Agreement to read in its entirety as set forth below;
NOW, THEREFORE, pursuant to Section 13.1(b) of the Amended Pooling
and Servicing Agreement, the parties hereto hereby agree that effective on and
as of the date hereof, the Amended Pooling and Servicing Agreement is hereby
amended to read in its entirety as follows:
In consideration of the mutual agreements herein contained, each
party agrees as follows for the benefit of the other parties and the
Certificateholders:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"Account Information" shall have the meaning specified in subsection
2.2(b).
"Account" shall mean each VISA (Registered Trademark) and MasterCard
(Registered Trademark) credit card account established pursuant to a
Credit Card Agreement between the Transferor and any Person identified by
account number and by the Receivable balance as of the Cut-Off Date and as of
each Addition Date in each computer file or microfiche list delivered to the
Trustee by the Transferor pursuant to Section 2.1 or 2.6. The definition of
Account shall include each Transferred Account. The term "Account" shall be
deemed to refer to an Additional Account only from and after the Addition Date
with respect thereto, and the term "Account" shall be deemed to refer to any
Removed Account only prior to the Removal Date with respect thereto.
"Accumulation Period" shall mean, with respect to any Series, or any Class
within a Series, a period following the Revolving Period during which
Collections of Principal Receivables are accumulated in an account for the
benefit of the Investor Certificateholders of a Series, or a Class within such
Series, which shall be the controlled accumulation period, the rapid
accumulation period or other accumulation period, in each case as defined with
respect to such Series in the related Supplement.
"Addition Date" shall mean each date as of which Additional Accounts will
be included as Accounts pursuant to Section 2.6.
"Additional Accounts" shall have the meaning specified in subsection
2.6(a).
"Affiliate" of any Person shall mean any other Person controlling,
controlled by or under common control with such Person.
"Aggregate Investor Default Amount" shall have, with respect to any Series
of Certificates, the meaning stated in the related Supplement.
"Aggregate Investor Interest" shall mean, as of any date of determination,
the sum of the Investor Interests of all Series of Certificates issued and
outstanding on such date of determination.
"Aggregate Investor Percentage" with respect to Principal Receivables,
Finance Charge Receivables and Receivables in Defaulted Accounts, as the case
may be, shall mean, as of any date of determination, the sum of such Investor
Percentages of all Series of Certificates issued and outstanding on such date
of determination; provided, however, that the Aggregate Investor Percentage
shall not exceed 100%.
"Agreement" shall mean this Pooling and Servicing Agreement and all
amendments hereof and supplements hereto, including any Supplement.
"Amortization Period" shall mean, with respect to any Series, or any Class
within a Series, a period following the Revolving Period during which principal
is distributed to Investor Certificateholders, which shall be the controlled
amortization period, the principal amortization period, the rapid amortization
period, or other amortization period, in each case as defined with respect to
such Series in the related Supplement.
"Annual Membership Fee" shall have the meaning specified in the Credit
Card Agreement applicable to each Account for annual membership fees or similar
terms.
"Applicants" shall have the meaning specified in Section 6.7.
"Appointment Day" shall have the meaning specified in subsection 9.2(a).
"Assignment" shall have the meaning specified in subsection 2.6(c)(ii).
"Authorized Newspaper" shall mean a newspaper of general circulation in
the Borough of Manhattan, The City of New York printed in the English language
and customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"Average Principal Receivables" shall mean, for any period, an amount
equal to (a) the sum of the aggregate amount of Principal Receivables at the
end of each day during such period divided by (b) the number of days in such
period.
"Bank Portfolio" shall mean the MasterCard and VISA accounts owned by the
Transferor.
"Bankruptcy Code" shall mean the United States federal Bankruptcy Code,
Title 11 of the United States Code, as amended.
"Base Rate" shall have the meaning, with respect to any Series, specified
in the related Supplement.
"Bearer Certificates" shall have the meaning specified in Section 6.1.
"Bearer Rules" shall mean the provisions of the Internal Revenue Code, in
effect from time to time, governing the treatment of bearer obligations,
including sections 163(f), 871, 881, 1441, 1442 and 4701, and any regulations
thereunder including, to the extent applicable to any Series, Proposed or
Temporary Regulations.
"BIF" shall mean the Bank Insurance Fund administered by the FDIC.
"Book-Entry Certificates" shall mean certificates evidencing a beneficial
interest in the Investor Certificates, ownership and transfers of which shall
be made through book entries by a Clearing Agency as described in Section 6.10;
provided, however that after the occurrence of a condition whereupon book-entry
registration and transfer are no longer authorized and Definitive Certificates
are to be issued to the Certificate Owners, such certificates shall no longer
be "Book-Entry Certificates."
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York (or, with respect to any
Series, any additional city specified in the related Supplement) are authorized
or obligated by law or executive order to be closed.
"Cash Advance Fees" shall have the meaning specified in the Credit Card
Agreement applicable to each Account for cash advance fees or similar terms.
"Cedel" shall mean Cedel Bank, societe anonyme.
"Certificate" shall mean any one of the Investor Certificates of any
Series or the Transferor Certificate.
"Certificateholder" or "Holder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register and, if applicable, the
holder of any Bearer Certificate or Coupon, as the case may be.
"Certificate Interest" shall mean interest payable in respect of the
Investor Certificates of any Series pursuant to Article IV of the Supplement
for such Series.
"Certificate Owner" shall mean, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may
be reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Principal" shall mean principal payable in respect of the
Investor Certificates of any Series pursuant to Article IV of this Agreement.
"Certificate Rate" shall mean, with respect to any Series of Certificates
(or, for any Series with more than one Class, for each Class of such Series),
the percentage (or formula on the basis of which such rate shall be determined)
stated in the related Supplement.
"Certificate Register" shall mean the register maintained pursuant to
Section 6.3, providing for the registration of the Certificates and transfers
and exchanges thereof.
"Chase Account" shall mean any Account included in the Trust Portfolio
pursuant to that certain Assignment No. 2 of Receivables in Additional
Accounts, dated as of September 1, 1996, among Chase Bank, Chase USA and the
Trustee, and any other Accounts originated by Chase USA and assigned to the
Trust Portfolio.
"Chase Bank" shall mean The Chase Manhattan Bank, a banking corporation
organized and existing under the laws of the State of New York.
"Chase Corporate Trust Office" shall mean the principal office of Chase
Bank at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Chase Portfolio Account" shall mean a MasterCard or VISA account owned by
Chase USA which is not processed by FDR.
"Chase USA" shall mean Chase Manhattan Bank USA, National Association, a
banking corporation organized and existing under the laws of the United States
and having its headquarters in the City of Wilmington, State of Delaware.
"Chemical Account" shall mean any Account other than a Chase Account.
"Chemical Portfolio Account" shall mean any Mastercard or VISA account
owned by the Transferor other than a Chase Portfolio Account.
"Class" shall mean, with respect to any Series, any one of the classes of
Certificates of that Series as specified in the related Supplement.
"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency or Foreign Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency or Foreign Clearing Agency.
"Closing Date" shall mean, with respect to any Series, the date of
issuance of such Series of Certificates, as specified in the related
Supplement.
"Collateral Interest" shall have the meaning, with respect to any Series,
specified in the related Supplement.
"Collection Account" shall have the meaning specified in subsection
4.2(a).
"Collections" shall mean all payments (including Insurance Proceeds)
received by the Servicer in respect of the Receivables, in the form of cash,
checks, wire transfers, ATM transfers or other form of payment in accordance
with the Credit Card Agreement in effect from time to time. A Collection
processed on an Account in excess of the aggregate amount of Receivables in
such Account as of the Date of Processing of such Collection shall be deemed to
be a payment in respect of Principal Receivables to the extent of such excess.
Collections with respect to any Monthly Period shall include the amount of
Interchange (if any) and the amount of Recoveries (if any) allocable to the
Trust with respect to such Monthly Period, to be applied as if such amounts
were Collections of Finance Charge Receivables for all purposes. Collections
with respect to any Monthly Period shall also include the amount deposited by
the Transferor into the Finance Charge Account (or Series Account if provided
in any supplement) pursuant to Section 2.8.
"Companion Series" shall mean (i) each Series which has been paired with
another series (which Series may be prefunded in whole or in part), such that
the reduction of the Investor Interest of such Series results in the increase
of the Investor Interest of such other Series, as described in the related
Supplements, and (ii) such other Series, as described in the related
Supplements.
"Controlled Distribution Amount," with respect to any Series, shall have
the meaning specified in the related Supplement.
"Corporate Trust Office" shall mean the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Coupon" shall have the meaning specified in Section 6.1.
"Credit Adjustment" shall have the meaning specified in subsection 4.3(c).
"Credit Card Agreement" shall mean the agreement and Federal Truth in
Lending Statement for MasterCard and VISA credit card accounts between any
Obligor and the Transferor, as such agreement may be amended, modified or
otherwise changed from time to time.
"Credit Card Guidelines" shall mean the Transferor's policies and
procedures relating to the operation of its credit card business, including,
without limitation, the policies and procedures for determining the
creditworthiness of credit card customers, the extension of credit to credit
card customers, and relating to the maintenance of credit card accounts and
collection of credit card receivables, as such policies and procedures may be
amended from time to time.
"Credit Enhancement" shall mean, with respect to any Series, the
subordination, the cash collateral guaranty or account, collateral interest,
letter of credit, surety bond, insurance policy, spread account, reserve
account, cross-support feature or any other contract or agreement for the
benefit of the Certificateholders of such Series (or Certificateholders of a
Class within such Series) as designated in the applicable Supplement.
"Credit Enhancement Provider" shall mean, with respect to any Series, the
Person, if any, designated as such in the related Supplement.
"Cut-Off Date" shall mean September 26, 1995.
"Date of Processing" shall mean, with respect to any transaction, the date
on which such transaction is first recorded on the Servicer's computer master
file of VISA and MasterCard accounts (without regard to the effective date of
such recordation).
"Default Amount" shall mean, with respect to any Defaulted Account, the
amount of Principal Receivables (other than Ineligible Receivables) in such
Defaulted Account on the day such Account became a Defaulted Account.
"Defaulted Account" shall mean each Account with respect to which, in
accordance with the Credit Card Guidelines or the Servicer's customary and
usual servicing procedures for servicing credit card receivables comparable to
the Receivables, the Servicer has charged off the Receivables in such Account
as uncollectible. An Account shall become a Defaulted Account on the day on
which such Receivables are recorded as charged off as uncollectible on the
Servicer's computer master file of VISA and MasterCard accounts.
Notwithstanding any other provision hereof, any Receivables in a Defaulted
Account that are Ineligible Receivables shall be treated as Ineligible
Receivables rather than Receivables in Defaulted Accounts.
"Definitive Certificate" shall have the meaning specified in Section 6.10.
"Depository" shall have the meaning specified in Section 6.10.
"Depository Agreement" shall mean, with respect to a Series having Book-
Entry Certificates, the agreement among the Transferor, the Trustee and the
Clearing Agency, or as otherwise provided in the related Supplement.
"Determination Date" shall mean, unless otherwise specified in the related
Series Supplement, the tenth calendar day of each month, or if such day is not
a Business Day, the next preceding Business Day.
"Discount Percentage" shall have the meaning specified in Section 2.8.
"Discount Option Receivables" shall mean, on any date on and after the
date on which the Transferor's exercise of its discount option pursuant to
Section 2.8 takes effect, the sum of (a) the aggregate Discount Option
Receivables at the end of the prior day (which amount, prior to the date on
which the Transferor's exercise of its discount option takes effect and with
respect to Receivables generated prior to such date, shall be zero) plus (b)
any New Discount Option Receivables created on such day minus (c) any Discount
Option Receivables Collections received on such Date of Processing.
"Discount Option Receivables Collections" shall mean on any Date of
Processing on and after the date on which the Transferor's exercise of its
discount option pursuant to Section 2.8 takes effect, the product of (a) a
fraction the numerator of which is the amount of the Discount Option
Receivables and the denominator of which is the sum of the Principal
Receivables plus the amount of Discount Option Receivables in each case (for
both numerator and denominator) at the end of the prior Monthly Period and (b)
Collections of Principal Receivables, prior to any reduction for Finance Charge
Receivables which are Discount Option Receivables, received on such Date of
Processing.
"Distribution Account" shall have the meaning specified in subsection
4.2(c).
"Distribution Date" shall mean, with respect to each Series, the dates
specified in the related Supplement.
"Dollars", "$" or "U.S. $" shall mean United States dollars.
"Eligible Account" shall mean, as of the Cut-Off Date (or, with respect to
Additional Accounts as of the relevant Addition Date), each Account owned by
the Transferor:
1. which is in existence and maintained with the Transferor;
2. which is payable in Dollars;
3. the Obligor on which has provided, as its most recent billing
address, an address which is located in the United States or its
territories or possessions;
4. which the Transferor has not classified on its electronic
records as counterfeit, deleted, fraudulent, stolen or lost;
5. which the Transferor has not charged off in its customary and
usual manner for charging off such Accounts as of the Cut-Off Date (or,
with respect to Additional Accounts, as of the relevant Addition Date);
and
6. the Obligor of which has not been identified by the Transferor
on its electronic records as being involved in a voluntary or involuntary
bankruptcy proceeding.
"Eligible Deposit Account" shall mean either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States or any one of the states thereof, including the District of
Columbia (or any domestic branch of a foreign bank), and acting as a trustee
for funds deposited in such account, so long as any of the securities of such
depository institution shall have a credit rating from each Rating Agency in
one of its generic credit rating categories which signifies investment grade.
"Eligible Institution" shall mean (a), the Servicer, (b) a depository
institution (which may be the Trustee or an affiliate) organized under the laws
of the United States or any one of the states thereof which at all times (i)
has either (x) a long-term unsecured debt rating of "A2" or better by Xxxxx'x
or (y) a certificate of deposit rating of "P-1" by Xxxxx'x, (ii) has either (x)
a long-term unsecured debt rating of "AAA" by Standard & Poor's or (y) a
certificate of deposit rating of "A-l+" by Standard & Poor's and (iii) is a
member of the FDIC or (c) any other institution that is acceptable to the
Rating Agencies.
"Eligible Receivable" shall mean each Receivable:
(a) which has arisen under an Eligible Account (in the case of
Accounts conveyed to the Trust on the Initial Closing Date and in the case
of Additional Accounts conveyed to the Trust on the relevant Addition
Date);
(b) which was created in compliance, in all material respects, with
all Requirements of Law applicable to the Transferor and pursuant to a
Credit Card Agreement which complies, in all material respects, with all
Requirements of Law applicable to the Transferor;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by the Transferor in
connection with the creation of such Receivable or the execution, delivery
and performance by the Transferor of the Credit Card Agreement pursuant to
which such Receivable was created, have been duly obtained, effected or
given and are in full force and effect as of such date of creation;
(d) as to which, as of the Closing Date, or in the case of
Receivables in Additional Accounts as of the relevant Addition Date, the
Transferor or the Trust had good title thereto, free and clear of all
Liens arising under or through the Transferor or any of its Affiliates
(other than Liens permitted pursuant to subsection 2.5(b));
(e) which is the legal, valid and binding payment obligation of the
Obligor thereon, enforceable against such Obligor in accordance with its
terms, except as affected by bankruptcy, insolvency, reorganization,
moratorium and other similar laws, now or hereafter in effect, relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a suit in equity or at law) and an implied covenant
of good faith and fair dealing; and
(f) which constitutes an "account" or "general intangible" under and
as defined in Article 9 of the UCC.
"Enhancement Invested Amount" shall have the meaning, with respect to any
Series, specified in the related Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Euroclear Operator" shall mean Xxxxxx Guaranty Trust Company of New York,
Brussels, Belgium office, as operator of the Euroclear System.
"Excess Funding Account" shall have the meaning specified in subsection
4.2(d).
"Excess Funding Amount" shall mean, as of any date of determination, the
principal amount on deposit in the Excess Funding Account.
"Exchange" shall mean either of the procedures described under Section
6.9.
"Exchange Date" shall have the meaning, with respect to any Series issued
pursuant to an Exchange, specified in Section 6.9.
"Exchange Notice" shall have the meaning, with respect to any Series
issued pursuant to an Exchange, specified in Section 6.9.
"Extended Trust Termination Date" shall have the meaning specified in
subsection 12.1(a).
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"FDR" shall have the meaning specified in Section 8.7.
"Fee Determination Date" shall have the meaning specified in Section
4.5(a).
"Finance Charge Account" shall have the meaning specified in subsection
4.2(b).
"Finance Charge Receivables" shall mean Receivables created in respect of
the Periodic Finance Charges, Cash Advance Fees and Late Fees and similar fees
and charges, Annual Membership Fees and Special Fees to the extent such Special
Fees are categorized as Finance Charge Receivables. Finance Charge Receivables
with respect to any Monthly Period shall include the amount of Interchange (if
any), Recoveries (if any), Discount Option Receivables (if any), Insurance
Proceeds and investment earnings from any of the Trust Accounts, and other
amounts allocable to any Series of Certificates pursuant to any Supplement with
respect to such Monthly Period that are to be treated as Finance Charge
Receivables but shall exclude charges for credit insurance. For purposes of
this Agreement, the amounts of Late Fees, similar fees and charges, Special
Fees and Interchange to be included in Finance Charge Collections shall be
determined in accordance with Sections 4.5 and 4.6 hereof.
"Foreign Clearing Agency" shall mean Cedel and the Euroclear Operator.
"Funding Period" shall have the meaning specified in Section 4.4.
"Global Certificate" shall have the meaning specified in Section 6.13.
"Governmental Authority" shall mean the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Group" shall mean, with respect to any Series, the group of Series in
which the related Supplement specifies that such Series shall be included.
"Ineligible Receivable" shall have the meaning specified in subsection
2.4(d)(iii).
"Initial Closing Date" shall mean October 19, 1995.
"Initial Investor Interest" shall mean, with respect to any Series of
Certificates, the amount stated in the related Supplement.
"Insolvency Event" shall have the meaning specified in subsection 9.2(a).
"Insurance Proceeds" shall mean any amounts recovered by the Servicer
pursuant to any credit insurance policies covering any Obligor with respect to
Receivables under such Obligor's Account.
"Interchange" shall mean, (1) with respect to any Monthly Period prior to
the September 1996 Monthly Period, the product of (x) the amounts recorded by
the Transferor as interchange with respect to the Bank Portfolio for such
Monthly Period and (y) the Trust Percentage; and (2) with respect to each
Monthly Period commencing with the September 1996 Monthly Period, the product
of (x) the amounts recorded by the Transferor as interchange with respect to
the Bank Portfolio for such Monthly Period and (y) a fraction, the numerator of
which is the total amount of purchases of merchandise and services relating to
the Accounts made during such Monthly Period and the denominator of which is
the total amount of purchases of merchandise and services relating to the Bank
Portfolio with respect to such Monthly Period.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended from time to time.
"Investor Account" shall mean each of the Finance Charge Account, the
Principal Account, the Excess Funding Account and the Distribution Account.
"Investor Certificate" shall mean any one of the certificates (including,
without limitation, the Bearer Certificates, the Registered Certificates or the
Global Certificates) issued by the Trust, executed by the Transferor and
authenticated by the Trustee substantially in the form (or forms in the case of
a Series with multiple Classes) of the investor certificate attached to the
related Supplement.
"Investor Certificateholder" shall mean each holder of record of an
Investor Certificate.
"Investor Charge-Off" shall have, with respect to each Series, the meaning
specified in the applicable Supplement.
"Investor Default Amount" shall have, with respect to any Series of
Certificates, the meaning stated in the related Supplement.
"Investor Exchange" shall have the meaning specified in subsection 6.9(b).
"Investor Interest" shall have, with respect to any Series of
Certificates, the meaning stated in the related Supplement.
"Investor Percentage" shall have, with respect to Principal Receivables,
Finance Charge Receivables and Receivables in Defaulted Accounts, and any
Series of Certificates, the meaning stated in the related Supplement.
"Investor Servicing Fee" shall have, with respect to each Series, the
meaning specified in Section 3.2.
"Late Fees" shall have the meaning specified in the Credit Card Agreement
applicable to each Account for late fees or similar terms.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever, including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing or comparable
law of any jurisdiction to evidence any of the foregoing; provided, however,
that any assignment pursuant to Section 7.2 shall not be deemed to constitute a
Lien.
"Minimum Aggregate Principal Receivables" shall mean, as of any date of
determination, the sum of the numerators used on such date to calculate the
Investor Percentage with respect to Principal Receivables for all Series
outstanding on such date, less the amount on deposit in the Excess Funding
Account as of such date of determination.
"Minimum Transferor Interest" shall mean, with respect to any Monthly
Period, an amount equal to the product of the Minimum Transferor Interest
Percentage and the sum of (i) the Average Principal Receivables for such
Monthly Period, (ii) the Excess Funding Amount and (iii) any amounts on deposit
in any Principal Funding Account and any other Series Account (if so specified
in the applicable Supplement).
"Minimum Transferor Interest Percentage" shall mean the highest percentage
specified as the "Minimum Transferor Interest Percentage" in any Supplement;
provided, however, that the Transferor may reduce the Minimum Transferor
Interest Percentage upon (w) 30 days' prior notice to the Trustee, each Rating
Agency and any Credit Enhancement Provider entitled to receive such notice
pursuant to the relevant Supplement, (x) written confirmation from each Rating
Agency that such action will satisfy the Rating Agency Condition, (y) delivery
to the Trustee and each such Credit Enhancement Provider of an Officer's
Certificate stating that the Transferor reasonably believes that such reduction
will not, based on the facts known to such officer at the time of such
certification, then or thereafter cause a Pay Out Event to occur with respect
to any Series and (z) delivery to the Trustee of a Tax Opinion; provided
further that the Minimum Transferor Interest Percentage shall not at any time
be less than 2%.
"Monthly Period" shall mean, unless otherwise defined in any Supplement,
the period from and including the first day of a calendar month to and
including the last day of a calendar month.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"New Discount Option Receivables" shall mean, as of any date of
determination, the product of the Discount Percentage and the amount of
Principal Receivables (before subtracting out Finance Charge Receivables which
are Discount Option Receivables) arising on such date of determination.
"Notice Date" shall have the meaning specified in subsection 2.6(c)(i).
"Obligor" shall mean, with respect to any Account, the Person or Persons
obligated to make payments with respect to such Account, including any
guarantor thereof.
"Officer's Certificate" shall mean a certificate signed by any Vice
President or more senior officer of the Transferor or Servicer and delivered to
the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may be
counsel for or an employee of the Person providing the opinion, and who shall
be reasonably acceptable to the Trustee.
"Participation" shall have the meaning specified in subsection 2.6(a)(ii).
"Paying Agent" shall mean any paying agent appointed pursuant to Section
6.6 and shall initially be Chase Bank.
"Pay Out Commencement Date" shall mean, (a) with respect to each Series,
the date on which a Trust Pay Out Event is deemed to occur pursuant to Section
9.1 or (b) with respect to any Series, a Series Pay Out Event is deemed to
occur pursuant to the Supplement for such Series.
"Pay Out Event" shall mean, with respect to each Series, a Trust Pay Out
Event or a Series Pay Out Event.
"Periodic Finance Charges" shall have the meaning specified in the Credit
Card Agreement applicable to each Account for finance charges (due to periodic
rate) or any similar term.
"Permitted Investments" shall mean, unless otherwise provided in the
Supplement with respect to any Series
(a) book-entry securities or negotiable instruments or securities
represented by instruments in bearer or registered form which evidence (i)
obligations of or fully guaranteed by the United States of America; (ii)
demand deposits, time deposits or certificates of deposit of any
depositary institution or trust company incorporated under the laws of the
United States of America or any state thereof (or domestic branches of
foreign banks) and subject to supervision and examination by federal or
state banking or depositary institution authorities; provided, however,
that at the time of the Trust's investment or contractual commitment to
invest therein, the certificates of deposit or short-term deposits of such
depositary institution or trust company shall have a credit rating from
Moody's and Standard & Poor's of "P-1" and "A-1+", respectively; (iii)
commercial paper having, at the time of the Trust's investment or
contractual commitment to invest therein, a rating from Moody's and
Standard & Poor's of "P-1" and "A-l+", respectively and (iv) bankers'
acceptances issued by any depository institution or trust company
described in clause (a)(ii) above;
(b) demand deposits in the name of the Trust or the Trustee in any
depositary institution or trust company referred to in clause (a)(ii)
above;
(c) repurchase agreements transacted with either
(i) an entity subject to the United States federal bankruptcy
code, provided that (A) the repurchase agreement matures prior to the
next Distribution Date or is due on demand, (B) the Trustee or a
third party acting solely as agent for the Trustee has possession of
the collateral, (C) the Trustee on behalf of the Trust has a security
interest in the collateral, (D) the market value of the collateral is
maintained at the requisite collateral percentage of the obligation
in accordance with standards of the Rating Agencies, (E) the failure
to maintain the requisite collateral level will obligate the Trustee
to liquidate the collateral immediately, (F) the securities subject
to the repurchase agreement are either obligations of, or fully
guaranteed as to principal and interest by, the United States of
America or any instrumentality or agency thereof, certificates of
deposit or bankers acceptances and (G) the securities subject to the
repurchase agreement are free and clear of any third party lien or
claim; or
(ii) a financial institution insured by the FDIC, or any broker-
dealer with "retail customers" that is under the jurisdiction of the
Securities Investors Protection Corp. ("SIPC"), provided that (A) the
market value of the collateral is maintained at the requisite
collateral percentage of the obligation in accordance with the
standards of the Rating Agencies, (B) the Trustee or a third party
(with a short-term debt rating of P-1 or higher by Moody's) acting
solely as agent for the Trustee has possession of the collateral, (C)
the Trustee on behalf of the Trust has a security interest in the
collateral, (D) the collateral is free and clear of third party liens
and, in the case of an SIPC broker, was not acquired pursuant to a
repurchase or reverse repurchase agreement and (E) the failure to
maintain the requisite collateral percentage will obligate the
Trustee to liquidate the collateral; provided, however, that at the
time of the Trust's investment or contractual commitment to invest in
any repurchase agreement, the short-term deposits or commercial paper
rating of such entity or institution in subsections (i) and (ii)
shall have a credit rating of "P-1" from Moody's and "A-1+" from
Standard & Poor's; and
(d) any other investment that by its terms converts to cash within a
finite time period if the Rating Agency Condition is satisfied with
respect thereto.
"Person" shall mean any legal person, including any individual,
corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
governmental entity or other entity of similar nature.
"Pool Factor" shall mean, except with respect to any Series issued in more
than one Class, a number carried out to seven decimals representing the ratio
of the applicable Investor Interest as of such Record Date (determined after
taking into account any reduction in the Investor Interest which will occur on
the following Distribution Date) to the applicable Initial Investor Interest,
and with respect to a Series having more than one Class, as specified in the
Supplement relating to such Series.
"Portfolio Yield" shall have the meaning, with respect to any Series,
specified in the related Supplement.
"Pre-Funding Account" shall have the meaning specified in Section 4.4.
"Principal Account" shall have the meaning specified in subsection 4.2(b).
"Principal Receivable" shall mean each Receivable other than (i) Finance
Charge Receivables, and (ii) Receivables in Defaulted Accounts. A Receivable
shall be deemed to have been created at the end of the day on the Date of
Processing of such Receivable. In calculating the aggregate amount of
Principal Receivables on any day, the amount of Principal Receivables shall be
reduced by the aggregate amount of credit balances in the Accounts on such day.
Any Receivables which the Transferor is unable to transfer as provided in
subsection 2.5(e) shall not be included in calculating the aggregate amount of
Principal Receivables.
"Principal Sharing Series" shall mean a Series, that, pursuant to the
related Supplement, is entitled to Shared Principal Collections.
"Principal Shortfalls" shall mean, with respect to a Transfer Date, the
aggregate amount for all outstanding Series that the related Supplements
specify are "Principal Shortfalls" for such Transfer Date.
"Principal Terms" shall have the meaning, with respect to any Series
issued pursuant to an Exchange, specified in subsection 6.9(c).
"Rating Agency" shall mean, with respect to each Series, the rating agency
or agencies, if any, specified in the related Supplement.
"Rating Agency Condition" shall mean, at any time with respect to a
Series, the written confirmation of the Rating Agency that a specified event or
modification of the terms of such Series will not result in the withdrawal or
downgrade of the rating of the Certificates of any Series then in effect.
"Reassignment" shall have the meaning specified in subsection 2.7(b)(ii).
"Reassignment Date" shall have the meaning specified in subsection 2.4(e).
"Receivable" shall mean any amount owing by any Obligor including, without
limitation, amounts owing for the payment of goods and services, cash advances,
access checks, Annual Membership Fees, Cash Advance Fees, Periodic Finance
Charges, Late Fees and Special Fees, if any but excluding credit insurance
premiums.
"Record Date" shall mean, with respect to any Distribution Date, the last
Business Day of the preceding Monthly Period.
"Recoveries" shall mean, (i) with respect to any Monthly Period or any
shorter period commencing on or after the Recovery Determination Date, the
product of (a) all amounts recorded as recoveries on the Bank Portfolio by the
Servicer during such Monthly Period or such shorter period, as the case may be,
and (b) the Trust Percentage; and (ii) with respect to any Monthly Period or
any shorter period ending prior to the Recovery Determination Date, Recoveries
shall include, (a) with respect to the Chase Accounts, all amounts recorded as
recoveries with respect to the Chase Accounts by the Servicer during such
period and (b) with respect to the Chemical Accounts, the product of (1) all
amounts recorded as recoveries on the Bank Portfolio (excluding the amounts
recorded as recoveries on the Chase Portfolio Accounts) by the Servicer during
such Monthly Period or such shorter period, as the case may be, and (2) a
fraction, the numerator of which shall be the aggregate principal amount of
Principal Receivables arising from the Chemical Accounts (prior to giving
effect to any reduction thereof for Finance Charge Receivables arising from the
Chemical Accounts which are Discount Option Receivables) as of the close of
business on the last day of the prior Monthly Period and the denominator of
which is the aggregate principal balance of the Chemical Portfolio Accounts as
of the close of business on the last day of the prior Monthly Period.
"Recovery Determination Date" shall mean the date specified by the
Servicer in an Officer's Certificate delivered to the Trustee as the date upon
which the Servicer will begin to calculate Recoveries in accordance with clause
(1) of the definition of the term "Recoveries."
"Registered Certificates" shall have the meaning specified in Section 6.1.
"Removal Date" shall mean the date on which Receivables in certain
designated Removed Accounts will be reassigned by the Trustee to the
Transferor.
"Removal Notice Date" shall mean the day no later than the fifth Business
Day prior to a Removal Date.
"Removed Accounts" shall have the meaning specified in subsection 2.7(a).
"Requirements of Law" for any Person shall mean the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local (including, without limitation, usury laws, the
federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"Responsible Officer" shall mean any officer within the Corporate Trust
Office (or any successor group of the Trustee), including any Vice President,
any Assistant Secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any person who at the time
shall be an above-designated officer and also, with any particular officer to
whom any corporate trust matter is referred because of such Officer's knowledge
of and familiarity with the particular subject.
"Revolving Period" shall have, with respect to each Series, the meaning
specified in the related Supplement.
"SAIF" shall mean the Savings Association Insurance Fund administered by
the FDIC.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series" shall mean any Series of Investor Certificates, which may include
within any such Series a Class or Classes of Investor Certificates subordinate
to another such Class or Classes of Investor Certificates.
"Series Account" shall mean any account or accounts established pursuant
to a Supplement for the benefit of such Series.
"Series Pay Out Event" shall have, with respect to any Series, the meaning
specified pursuant to the Supplement for the related Series.
"Series Servicing Fee Percentage" shall mean, with respect to any Series,
the amount specified in the related Supplement.
"Series Termination Date" shall mean, with respect to any Series of
Certificates, the date stated in the related Supplement.
"Servicer" shall mean initially Chase Bank, and its permitted successors
and assigns and thereafter any Person appointed as successor as herein provided
to service the Receivables.
"Servicer Default" shall have the meaning specified in Section 10.1.
"Servicing Fee" shall have the meaning specified in Section 3.2.
"Servicing Officer" shall mean any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Receivables whose name
appears on a list of servicing officers furnished to the Trustee by the
Servicer, as such list may from time to time be amended.
"Shared Excess Finance Charge Collections" shall mean, with respect to any
Transfer Date, the aggregate amount for all outstanding Series that the related
supplements specify are to be treated as "Shared Excess Finance Charge
Collections" for such Transfer Date.
"Shared Principal Collections" shall mean, with respect to any Transfer
Date, the aggregate amount for all outstanding Series that the related
Supplements specify are to be treated as "Shared Principal Collections" for
such Transfer Date.
"Special Fees" shall mean any fees which are not now but from time to time
may be assessed on the Accounts. On or after the date on which any of such
Special Fees begin to be assessed on the Accounts, the Transferor may designate
in an Officer's Certificate whether such Special Fees shall be treated as
Principal Receivables or Finance Charge Receivables.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
Division of The XxXxxx-Xxxx Companies, Inc.
"Successor Servicer" shall have the meaning specified in subsection
10.2(a).
"Supplement" or "Series Supplement" shall mean, with respect to any
Series, a supplement to this Agreement complying with the terms of Section 6.9
of this Agreement, executed in conjunction with any issuance of any Series of
Certificates (or, in the case of the issuance of Certificates on the Initial
Closing Date, the supplement executed in connection with the issuance of such
Certificates).
"Tax Opinion" shall mean with respect to any action, an Opinion of Counsel
delivered to the Trust and the Trustee to the effect that, for U.S. federal
income tax purposes, (a) such action will not adversely affect the tax
characterization as debt of Investor Certificates of any outstanding Series or
Class that were characterized as debt at the time of their issuance, (b)
following such action the Trust will not be deemed to be an association (or a
"publicly traded partnership" within the meaning of Section 7704(b) of the
Code) taxable as a corporation and (c) such action will not cause or constitute
a taxable event in which gain or loss would be recognized by any Investor
Certificateholder or the Trust.
"Termination Notice" shall have, with respect to any Series, the meaning
specified in subsection 10.1(d).
"Transfer Agent and Registrar" shall have the meaning specified in Section
6.3 and shall initially be the Chase Corporate Trust Office.
"Transfer Date" shall mean, unless otherwise specified in the related
Supplement, with respect to any Series, the Business Day immediately prior to
each Distribution Date.
"Transferor" shall mean (i) with respect to the time period prior to June
1, 1996, Chase Bank and (ii) with respect to the time period beginning on June
1, 1996, Chase USA and its successors in interest and permitted assigns.
"Transferor Certificate" shall mean the certificate executed by the
Transferor and authenticated by the Trustee, substantially in the form of
Exhibit A and exchangeable as provided in Section 6.9; provided, however, that
at any time there shall be only one Transferor Certificate.
"Transferor Exchange" shall have the meaning specified in subsection
6.9(b).
"Transferor Interest" shall mean, on any date of determination, the
aggregate amount of Principal Receivables and the principal amounts on deposit
in the Excess Funding Account, any Principal Funding Account and any other
Series Account (if so provided in the applicable Supplement) at the end of the
day immediately prior to such date of determination, minus the Aggregate
Investor Interest at the end of such day, minus the aggregate Enhancement
Invested Amounts (if such amounts are not included in the Investor Interest in
the applicable Supplement), if any, for each Series outstanding at the end of
such day.
"Transferor Percentage" shall mean, on any date of determination, when
used with respect to Principal Receivables, Finance Charge Receivables and
Receivables in Defaulted Accounts, a percentage equal to 100% minus the
Aggregate Investor Percentage with respect to such categories of Receivables.
"Transferor Servicing Fee" shall have the meaning specified in Section
3.2.
"Transferred Account" shall mean (a) an Account with respect to which a
new credit account number has been issued by the Servicer or the Transferor
under circumstances resulting from a lost or stolen credit card or from the
transfer from one affinity group to another affinity group and not requiring
standard application and credit evaluation procedures under the Credit Card
Guidelines or (b) an Eligible Account resulting from the conversion of an
Account that was a standard account to a premium account or from a premium
account to a standard account, and which in either case can be traced or
identified by reference to or by way of the computer files or microfiche lists
delivered to the Trustee pursuant to Section 2.1 or 2.6 as an account into
which an Account has been transferred.
"Trust" shall mean the trust created by this Agreement, the corpus of
which shall consist of the Receivables now existing or hereafter created and
arising in connection with the Accounts, all monies due or to become due with
respect to the Receivables, all proceeds (as defined in Section 9-306 of the
UCC) of the Receivables and Insurance Proceeds relating to the Receivables, the
right to receive certain amounts paid or payable as Interchange and Recoveries,
such funds as from time to time are deposited in the Collection Account, the
Finance Charge Account, the Principal Account, the Distribution Account, the
Excess Funding Account and any Series Account and the rights to any Credit
Enhancement with respect to any Series. The name of such Trust shall be "The
Chemical Master Credit Card Trust I" or any other name at the option of the
Transferor; provided, however, that at least 5 Business Days prior to any
change in the name of Trust, the Transferor shall give written notice of such
change to the Servicer, the Trustee, each Rating Agency, any Credit Enhancement
Provider and all Certificateholders.
"Trust Accounts" shall mean the Collection Account, the Principal Account,
the Finance Charge Account, the Distribution Account and the Excess Funding
Account.
"Trust Extension" shall have the meaning specified in subsection 12.1(a).
"Trust Pay Out Event" shall have, with respect to each Series, the meaning
specified in Section 9.1.
"Trust Percentage" shall mean, with respect to any Monthly Period, a
fraction expressed as a percentage, the numerator of which is the aggregate
principal amount of Principal Receivables (prior to giving effect to any
reduction thereof for Finance Charge Receivables which are Discount Option
Receivables) as of the close of business on the last day of the prior Monthly
Period and the denominator of which is the aggregate principal balance of the
Bank Portfolio as of the close of business on the last day of the prior Monthly
Period.
"Trust Termination Date" shall mean (i) if a Trust Extension shall not
have occurred, the earlier to occur of (a) the first Business Day after the
Distribution Date following the date on which funds shall have been deposited
in the Distribution Account or the applicable Series Account for the payment of
Investor Certificateholders of each Series then issued and outstanding
sufficient to pay in full such certificates, (b) the date specified in
subsection 9.2(b) and (c) August 31, 2016, and (ii) if a Trust Extension shall
have occurred, the Extended Trust Termination Date.
"Trustee" shall mean The Bank of New York, a New York banking corporation,
and its successors and any corporation resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in either the State of New York or the State of Delaware, as
applicable.
"Undivided Interest" shall mean the undivided interest in the Trust
evidenced by an Investor Certificate.
Section 1.2 Other Definitional Provisions.
(a) All terms defined in any Supplement or this Agreement shall have
the defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1, and accounting terms partially defined in Section 1.1 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles or regulatory accounting procedures applicable
to the Transferor, as applicable. To the extent that the definitions of
accounting terms herein are inconsistent with the meanings of such terms under
generally accepted accounting principles or such regulatory accounting
procedures, the definitions contained herein shall control.
(c) The agreements, representations and warranties of Chase Bank in
this Agreement and in any Supplement in each of its capacities as Transferor
and Servicer shall be deemed to be the agreements, representations and
warranties of Chase Bank solely in each such capacity for the time periods
during which Chase Bank acts in the respective capacity under this Agreement
and the agreements, representations and warranties of Chase USA in this
Agreement and in any Supplement in its capacity as Transferor shall be deemed
to be the agreements, representations and warranties of Chase USA solely in
such capacity for the time periods and for so long as Chase USA acts in such
capacity under this Agreement.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to any Supplement or
this Agreement as a whole and not to any particular provision of this Agreement
or any Supplement; and Section, subsection, Schedule and Exhibit references
contained in this Agreement or any Supplement are references to Sections,
subsections, Schedules and Exhibits in or to this Agreement or any Supplement
unless otherwise specified. The Monthly Servicer Report, the form of which is
attached as Exhibit C, shall be in substantially the form of Exhibit C, with
such changes as the Servicer may determine to be necessary or desirable;
provided, however, that no such change shall serve to exclude information
required by the Agreement or any Supplement. The Servicer shall, upon making
such determination, deliver to the Trustee and each Rating Agency an Officer's
Certificate to which shall be annexed the form of the related Exhibit, as so
changed. Upon the delivery of such Officer's Certificate to the Trustee, the
related Exhibit, as so changed, shall for all purposes of this Agreement
constitute such Exhibit. The Trustee may conclusively rely upon such Officer's
Certificate in determining whether the related Exhibit, as changed, conforms to
the requirements of this Agreement.
[End of Article I]
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Receivables. Each of Chase Bank and Chase
USA does hereby transfer, assign, set over, and otherwise convey to the Trust
for the benefit of the Certificateholders, without recourse, all of its right,
title and interest in and to (i) the Receivables existing as of the Cut-Off
Date and thereafter created and arising in connection with the Accounts (other
than Additional Accounts), (ii) all monies due or to become due with respect to
such Receivables, (iii) all proceeds of such Receivables, (iv) Insurance
Proceeds relating to such Receivables, (v) Recoveries and (vi) Interchange.
In connection with such transfer, assignment, set-over and
conveyance, each of Chase Bank and Chase USA agrees to file, at its own
expense, a financing statement (including any continuation statements with
respect to such financing statement when applicable) with respect to the
Receivables now existing and hereafter created for the perfection of a security
interest (as defined in the UCC) in accounts and general intangibles (as
defined in Section 9-106 of the UCC) meeting the requirements of applicable
state law in such manner and in such jurisdictions as are necessary to perfect
such security interest in favor of the Trust, and to deliver a file-stamped
copy of such financing statement or continuation statement or other evidence at
such filing (which may, for purposes of this Section 2.1, consist of telephone
confirmation of such filing) to the Trustee on or prior to the date of issuance
of the Certificates, and in the case of any continuation statements filed
pursuant to this Section 2.1, as soon as practicable after receipt thereof by
the Transferor. It is understood and agreed that the description of collateral
set forth in such financing statements will include all credit card accounts of
the Transferor. Upon receipt of written request from the Transferor to release
the receivables in such credit card accounts as are specified in such request,
the Trustee is hereby authorized and hereby agrees to execute promptly, UCC-3
amendments or releases, releasing such credit card accounts; provided, however,
that except as permitted pursuant to Section 2.7, no such release shall apply
to the Accounts, including any Additional Accounts. In addition, the Trustee
is hereby authorized to execute such intercreditor or other agreements as may
be requested in writing by the Transferor in connection with the foregoing;
provided, however, that except as permitted pursuant to Section 2.7, no such
intercreditor agreements shall apply to the Accounts, including any Additional
Accounts, or any Receivables in such Accounts or Additional Accounts. The
foregoing transfer, assignment, set-over and conveyance to the Trust shall be
made to the Trustee, on behalf of the Trust, and each reference in this
Agreement to such transfer, assignment, set-over and conveyance shall be
construed accordingly.
In connection with such transfer, the Transferor agrees, at its own
expense, on or prior to the Initial Closing Date (i) to indicate in its
computer files that Receivables created in connection with the Accounts have
been transferred to the Trust pursuant to this Agreement for the benefit of the
Certificateholders and (ii) to deliver to the Trustee a computer file or
microfiche list containing a true and complete list of all such Accounts,
identified by account number and setting forth the Receivable balance as of the
Cut-Off Date. Such file or list shall be marked as Schedule 1 to this
Agreement, delivered to the Trustee as confidential and proprietary, and is
hereby incorporated into and made a part of this Agreement. The Transferor
further agrees not to remove such indication in the file referenced in clause
(i) of this paragraph with respect to any Account during the term of this
Agreement unless and until such Account becomes a Removed Account or a
Defaulted Account.
The Transferor hereby grants to the Trustee a security interest in
all of the Transferor's right, title and interest in, to and under the
Receivables existing as of the Cut-Off Date and thereafter created and arising
in connection with the Accounts (other than Additional Accounts), all moneys
due or to become due with respect to such Receivables, all proceeds of such
Receivables and all Insurance Proceeds relating to such Receivables, all
Recoveries and Interchange and all proceeds thereof to secure a loan in an
amount equal to the unpaid principal amount of the Investor Certificates issued
hereunder or to be issued pursuant to this Agreement and the interest accrued
at the related Certificate Rate, and this Agreement shall constitute a security
agreement under applicable law.
Pursuant to the request of the Transferor, the Trustee shall cause
Certificates in authorized denominations evidencing the entire interest in the
Trust to be duly authenticated and delivered to or upon the order of the
Transferor pursuant to Section 6.2.
Notwithstanding anything else in this Agreement to the contrary, it
is understood and agreed that the ownership interest or lien conveyed or
granted by Chase Bank, as Transferor, to the Trustee in Receivables and other
property under the Original Pooling and Servicing Agreement shall remain in
full force and effect and shall in no way be affected by the amendment and
restatement of the Original Pooling and Servicing Agreement by this Agreement.
Section 2.2 Acceptance by Trustee.
(a) The Trustee hereby acknowledges its acceptance, on behalf of the
Trust, of all right, title and interest previously held by the Transferor in
and to the Receivables existing as of the Cut-Off Date and thereafter created
and arising in connection with the Accounts, all monies due or to become due
with respect thereto (including all Finance Charge Receivables), all proceeds
of such Receivables, Insurance Proceeds relating to such Receivables, all
Recoveries and Interchange and the proceeds thereof, and declares that it shall
maintain such right, title and interest, upon the Trust herein set forth, for
the benefit of all Certificateholders. The Trustee further acknowledges that,
prior to or simultaneously with the execution and delivery of this Agreement,
the Transferor delivered to the Trustee the computer file or microfiche list
described in the third paragraph of Section 2.1.
(b) The Trustee hereby agrees not to disclose to any Person any of
the account numbers or other information contained in the computer files or
microfiche lists delivered to the Trustee by the Transferor pursuant to
Sections 2.1, 2.6 and 2.7 ("Account Information") except as required in
connection with the performance of its duties hereunder or in enforcing the
rights of the Certificateholders or to a Successor Servicer appointed pursuant
to Section 10.2, or as mandated pursuant to any Requirement of Law applicable
to the Trustee or as requested by any Person in connection with financing
statements filed with the Trust. The Trustee agrees to take such measures as
shall be reasonably requested by the Transferor to protect and maintain the
security and confidentiality of such information, and, in connection therewith,
shall allow the Transferor to inspect the Trustee's security and
confidentiality arrangements from time to time during normal business hours.
In the event that the Trustee is required by law to disclose any Account
Information, the Trustee shall provide the Transferor with prompt written
notice, unless such notice is prohibited by law, of any such request or
requirement so that the Transferor may request a protective order or other
appropriate remedy. The Trustee shall use its best efforts to provide the
Transferor with written notice no later than five Business Days prior to any
disclosure pursuant to this subsection 2.2(b).
(c) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
Section 2.3 Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Trust as of the Initial
Closing Date:
(a) Organization and Good Standing. The Transferor is a banking
corporation duly organized and validly existing in good standing under the
laws of the jurisdiction of its organization and has full corporate power,
authority and legal right to execute, deliver and perform its obligations
under this Agreement and to execute and deliver to the Trustee the
Certificates pursuant hereto, and, in all material respects, to own its
properties and conduct its business as such properties are presently owned
and such business is presently conducted.
(b) Due Qualification. The Transferor is duly qualified to do
business and is in good standing (or is exempt from such requirement) and
has obtained all necessary licenses and approvals with respect to the
Transferor in each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would render any Credit Card Agreement
relating to an Account or any Receivable unenforceable by the Transferor
or the Trust or would have a material adverse effect on the
Certificateholders; provided, however, that no representation or warranty
is made with respect to any qualifications, licenses or approvals which
the Trustee would have to obtain to do business in any state in which the
Trustee seeks to enforce any Account or Receivable.
(c) Due Authorization. The execution and delivery of this Agreement
and the execution and delivery to the Trustee of the Certificates by the
Transferor and the consummation of the transactions provided for in this
Agreement have been duly authorized by the Transferor by all necessary
corporate action on its part and this Agreement will remain, from the time
of its execution, an official record of the Transferor.
(d) No Conflict. The execution and delivery of this Agreement and
the Certificates, the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which the Transferor is a party or by which
it or any of its properties are bound, except to the extent that the same
could not reasonably be expected to have a material adverse effect on the
Certificateholders.
(e) No Violation. The execution and delivery of this Agreement, any
Supplement and the Certificates, the performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
will not conflict with or violate any Requirements of Law applicable to
the Transferor, except to the extent that the same could not reasonably be
expected to have a material adverse effect on the Certificateholders.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Transferor, threatened against
the Transferor before any court, regulatory body, administrative agency,
or other tribunal or governmental instrumentality (i) asserting the
invalidity of this Agreement or the Certificates, (ii) seeking to prevent
the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement or the Certificates, (iii)
seeking any determination or ruling that, in the reasonable judgment of
the Transferor, would materially and adversely affect the performance by
the Transferor of its obligations under this Agreement, (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement or the Certificates or (v)
seeking to affect adversely the income tax attributes of the Trust.
(g) Eligibility of Accounts. As of the Cut-Off Date, each Account
was an Eligible Account and no selection procedures adverse to the
Investor Certificateholders have been employed by the Transferor in
selecting the Accounts from among the Eligible Accounts in the Bank
Portfolio.
(h) All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery of this
Agreement and the Certificates, the performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof,
have been obtained, except where the failure to obtain such approvals,
authorizations, consents, orders or other actions could not reasonably be
expected to have a material adverse effect on the Certificateholders.
For the purposes of the representations and warranties contained in
this Section 2.3 and made by the Transferor on the Initial Closing Date,
"Certificates" shall mean the Certificates issued on the Initial Closing Date.
The representations and warranties set forth in this Section 2.3 shall survive
the transfer and assignment of the respective Receivables to the Trust, and
termination of the rights and obligations of the Servicer pursuant to Section
10.1. The Transferor hereby represents and warrants to the Trust, with respect
to any Series of Certificates, as of its Closing Date, unless otherwise stated
in such Supplement, that the representations and warranties of the Transferor
set forth in Section 2.3 are true and correct as of such date (for the purposes
of such representations and warranties, "Certificates" shall mean the
Certificates issued on the related Closing Date). Upon discovery by the
Transferor, the Servicer or the Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
Section 2.4 Representations and Warranties of the Transferor
Relating to the Agreement and the Receivables.
(a) Binding Obligation; Valid Transfer and Assignment. The
Transferor hereby represents and warrants to the Trust that, as of the Initial
Closing Date:
(i) This Agreement constitutes a valid and
legally binding obligation of the Transferor, enforceable against the
Transferor in accordance with its terms, except (A) as may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and the
rights of creditors of banking corporations organized under the laws of
the state of its organization, and (B) as may be limited by general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
(ii) This Agreement constitutes either (A) a
valid transfer, assignment, set-over and conveyance to the Trust of all
right, title and interest of the Transferor in and to the Receivables
now existing and hereafter created and arising in connection with the
Accounts (other than Receivables in Additional Accounts), all proceeds
of such Receivables and Insurance Proceeds relating thereto, and such
Receivables and all proceeds thereof and Insurance Proceeds relating
thereto will be held by the Trust free and clear of any Lien of any
Person claiming through or under the Transferor or any of its
Affiliates except for (x) Liens permitted under subsection 2.5(b), (y)
the interest of the Transferor as Holder of the Transferor Certificate
and (z) the Transferor's right, if any, to interest accruing on, and
investment earnings, if any, in respect of the Finance Charge Account,
the Principal Account or any Series Account, as provided in this
Agreement or the related Supplement, or (B) a grant of a security
interest (as defined in the UCC) in such property to the Trust, which
is enforceable with respect to the existing Receivables, the proceeds
thereof and Insurance Proceeds relating thereto upon execution and
delivery of this Agreement, and which will be enforceable with respect
to such Receivables hereafter created, the proceeds thereof and
Insurance Proceeds relating thereto, upon such creation. If this
Agreement constitutes the grant of a security interest to the Trust in
such property, upon the filing of the financing statement described in
Section 2.1 and in the case of the Receivables hereafter created and
proceeds thereof and Insurance Proceeds relating thereto, upon such
creation, the Trust shall have a first priority perfected security
interest in the Transferor's rights in such property (subject to
Section 9-306 of the UCC), except for Liens permitted under subsection
2.5(b). Neither the Transferor nor any Person claiming through or
under the Transferor shall have any claim to or interest in the
Principal Account, the Finance Charge Account, the Distribution Account
or any Series Account, except for the Transferor's rights to receive
interest accruing on, and investment earnings in respect of, the
Finance Charge Account and Principal Account as provided in this
Agreement (or, if applicable, any Series Account as provided in any
Supplement) and, if this Agreement constitutes the grant of a security
interest in such property, except for the interest of the Transferor in
such property as a debtor for purposes of the UCC.
(b) Eligibility of Receivables. The Transferor hereby
represents and warrants to the Trust as of the Initial Closing Date and as of
each Addition Date, as the case may be, that:
(i) Each Receivable is an Eligible Receivable as
of the Cut-Off Date or the Addition Date, as applicable.
(ii) Each Receivable then existing has been
transferred to the Trust free and clear of any Lien of any Person
claiming through or under the Transferor or any of its Affiliates
(other than Liens permitted under subsection 2.5(b)) and in compliance,
in all material respects, with all Requirements of Law applicable to
the Transferor.
(iii) With respect to each Receivable then
existing, all consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority required
to be obtained, effected or given by the Transferor in connection with
the conveyance of such Receivable to the Trust have been duly obtained,
effected or given and are in full force and effect.
(iv) On each day on which any new Receivable is
created, the Transferor shall be deemed to represent and warrant to the
Trust that (A) each Receivable created on such day is an Eligible
Receivable, (B) each Receivable created on such day has been conveyed
to the Trust in compliance, in all material respects, with all
Requirements of Law applicable to the Transferor, (C) with respect to
each such Receivable, all consents, licenses, approvals or
authorizations of or registrations or declarations with, any
Governmental Authority required to be obtained, effected or given by
the Transferor in connection with the conveyance of such Receivable to
the Trust have been duly obtained, effected or given and are in full
force and effect and (D) the representations and warranties set forth
in subsection 2.4(a) are true and correct with respect to each
Receivable created on such day as if made on such day.
(v) As of the Initial Closing Date, Schedule 1
to this Agreement, and as of the applicable Addition Date with respect
to Additional Accounts designated pursuant to Sections 2.6(a) and (b),
the related computer file or microfiche list referred to in Section
2.6, is an accurate and complete listing in all material respects of
all the Accounts as of the Cut-Off Date, or with respect to Additional
Accounts, as of the applicable Addition Date and the information
contained therein with respect to the identity of such Accounts and the
Receivables existing thereunder is true and correct in all material
respects as of the Cut-Off Date or such applicable Addition Date. As
of September 28, 1995, the aggregate amount of Receivables in all the
Accounts was $5,118,124,136.02 of which $5,016,343,299.38 were
Principal Receivables.
(c) Notice of Breach. The representations and warranties
set forth in this Section 2.4 shall survive the transfer and assignment of the
respective Receivables to the Trust. Upon discovery by the Transferor, the
Servicer or the Trustee of a breach of any of the representations and
warranties set forth in this Section 2.4, the party discovering such breach
shall give prompt written notice to the other parties mentioned above. The
Transferor agrees to cooperate with the Servicer and the Trustee in attempting
to cure any such breach.
(d) Transfer of Ineligible Receivables.
(i) Automatic Removal. In the event of a breach
with respect to a Receivable of any representations and warranties set
forth in subsection 2.4(b)(ii), or in the event that a Receivable is
not an Eligible Receivable as a result of the failure to satisfy the
conditions set forth in clause (d) of the definition of Eligible
Receivable, and any of the following three conditions is met: (A) as a
result of such breach or event such Receivable is charged off as
uncollectible or the Trust's rights in, to or under such Receivable or
its proceeds are impaired or the proceeds of such Receivable are not
available for any reason to the Trust free and clear of any Lien; (B)
the Lien upon the subject Receivable (1) arises in favor of the United
States of America or any State or any agency or instrumentality thereof
and involves taxes or liens arising under Title IV of ERISA or (2) has
been consented to by the Transferor; or (C) the unsecured short-term
debt rating of the Transferor is not at least "P-1" by Xxxxx'x and "A-
1" by Standard & Poor's and the Lien upon the subject Receivable ranks
prior to the Lien created pursuant to this Agreement; then, upon the
earlier to occur of the discovery of such breach or event by the
Transferor or the Servicer or receipt by the Transferor of written
notice of such breach or event given by the Trustee, each such
Receivable shall be automatically removed from the Trust on the terms
and conditions set forth in subsection 2.4(d)(iii).
(ii) Removal After Cure Period. In the event of
a breach of any of the representations and warranties set forth in
subsection 2.4(b) other than a breach or event as set forth in clause
(d)(i) above, and as a result of such breach the related Account
becomes a Defaulted Account or the Trust's rights in, to or under the
Receivable or its proceeds are impaired or the proceeds of such
Receivable are not available for any reason to the Trust free and clear
of any Lien, then, upon the expiration of 60 days (or such longer
period as may be agreed to by the Trustee in its sole discretion, but
in no event later than 120 days) from the earlier to occur of the
discovery of any such event by either the Transferor or the Servicer,
or receipt by the Transferor of written notice of any such event given
by the Trustee, each such Receivable shall be removed from the Trust on
the terms and conditions set forth in subsection 2.4(d)(iii);
provided, however, that no such removal shall be required to be made
if, on any day within such applicable period, such representations and
warranties with respect to such Receivable shall then be true and
correct in all material respects as if such Receivable had been
created on such day.
(iii) Procedures for Removal. When the provisions
of subsection 2.4(d)(i) or (ii) above require removal of a Receivable,
the Transferor shall accept reassignment of such Receivable (an
"Ineligible Receivable") by directing the Servicer to deduct the
principal balance of each such Ineligible Receivable from the Principal
Receivables in the Trust and to decrease the Transferor Interest by
such amount. On and after the date of such removal, each Ineligible
Receivable shall be deducted from the aggregate amount of Principal
Receivables used in the calculation of any Investor Percentage, the
Transferor Percentage or the Transferor Interest. In the event that
the exclusion of an Ineligible Receivable from the calculation of the
Transferor Interest would cause the Transferor Interest to be reduced
below the Minimum Transferor Interest, the Transferor shall
immediately, but in no event later than 10 Business Days after such
event, make a deposit in the Excess Funding Account in immediately
available funds in an amount equal to the amount by which the
Transferor Interest would be reduced below the Minimum Transferor
Interest. The portion of such deposit allocated to the Investor
Certificates of each Series shall be distributed to the Investor
Certificateholders of each Series in the manner specified in Article
IV, if applicable, on the Distribution Date relating to the Monthly
Period in which such deposit is made. Upon the reassignment to the
Transferor of an Ineligible Receivable, the Trust shall automatically
and without further action be deemed to transfer, assign, set-over and
otherwise convey to the Transferor, without recourse, representation or
warranty, all the right, title and interest of the Trust in and to such
Ineligible Receivable, all monies due or to become due with respect to
such Ineligible Receivable and all proceeds of such Ineligible
Receivable and Insurance Proceeds relating to such Ineligible
Receivable allocated to such Ineligible Receivable pursuant to any
Supplement. Such reassigned Ineligible Receivable shall be treated by
the Trust as collected in full as of the date on which it was
transferred. The Trustee shall execute such documents and instruments
of transfer or assignment and take other actions as shall reasonably be
requested by the Transferor to evidence the conveyance of such
Ineligible Receivable pursuant to this subsection 2.4(d)(iii). The
obligation of the Transferor set forth in this subsection 2.4(d)(iii),
or the automatic removal of such Receivable from the Trust, as the case
may be, shall constitute the sole remedy respecting any breach of the
representations and warranties set forth in the above-referenced
subsections with respect to such Receivable available to
Certificateholders or the Trustee on behalf of Certificateholders.
(iv) Proceeds Held by Servicer. For the purposes
of subsections 2.4(d)(i) and (ii) above, proceeds of a Receivable shall
not be deemed to be impaired hereunder solely because such proceeds are
held by the Servicer (if the Servicer is the Transferor) for more than
the applicable period under Section 9-306(3) of the UCC.
(e) Reassignment of Trust Portfolio. In the event of a
breach of any of the representations and warranties set forth in subsection
2.4(a), either the Trustee or the Holders of Investor Certificates evidencing
Undivided Interests aggregating more than 50% of the Aggregate Investor
Interest, by notice then given in writing to the Transferor (and to the Trustee
and the Servicer, if given by the Investor Certificateholders), may direct the
Transferor to accept reassignment of an amount of Principal Receivables (as
specified below) within 60 days of such notice (or within such longer period as
may be specified in such notice), and the Transferor shall be obligated to
accept reassignment of such Principal Receivables on a Distribution Date
specified by the Transferor (such Distribution Date, the "Reassignment Date")
occurring within such applicable period on the terms and conditions set forth
below; provided, however, that no such reassignment shall be required to be
made if, at any time during such applicable period, the representations and
warranties contained in subsection 2.4(a) shall then be true and correct in all
material respects. The Transferor shall deposit on the Transfer Date (in New
York Clearing House, next day funds) preceding the Reassignment Date an amount
equal to the reassignment deposit amount for such Receivables in the
Distribution Account or Series Account, as provided in the related Supplement,
for distribution to the Investor Certificateholders pursuant to Article XII.
The reassignment deposit amount with respect to each Series for such
reassignment, unless otherwise stated in the related Supplement, shall be equal
to (i) the Investor Interest of such Series at the end of the day on the last
day of the Monthly Period preceding the Reassignment Date, less the amount, if
any, previously allocated for payment of principal to such Certificateholders
on the related Distribution Date in the Monthly Period in which the
Reassignment Date occurs, plus (ii) an amount equal to all interest accrued but
unpaid on the Investor Certificates of such Series at the applicable
Certificate Rate through the Reassignment Date, less the amount, if any,
previously allocated for payment of interest to the Certificateholders of such
Series on the related Distribution Date in the Monthly Period in which the
Reassignment Date occurs. Payment of the reassignment deposit amount with
respect to each Series, and all other amounts in the Distribution Account or
the applicable Series Account in respect of the preceding Monthly Period, shall
be considered a prepayment in full of the Receivables represented by the
Investor Certificates on the Distribution Date following the Transfer Date on
which such amount has been deposited in full into the Distribution Account or
the applicable Series Account, the Receivables and all monies due or to become
due with respect to such Receivables and all proceeds of the Receivables and
Insurance Proceeds relating to such Receivables and Interchange (if any) and
Recoveries (if any) allocable to the Series shall be released to the Transferor
after payment of all amounts otherwise due hereunder on or prior to such dates
and the Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as shall
be prepared by and as are reasonably requested by the Transferor to vest in the
Transferor, or its designee or assignee, all right, title and interest of the
Trust in and to the Receivables, all monies due or to become due with respect
to such Receivables and all proceeds of the Receivables and Insurance Proceeds
relating to such Receivables and Interchange (if any) and Recoveries (if any)
allocable to the Series. If the Trustee or the Investor Certificateholders
give notice directing the Transferor to accept reassignment as provided above,
the obligation of the Transferor to accept reassignment of the Receivables and
pay the reassignment deposit amount pursuant to this subsection 2.4(e) shall
constitute the sole remedy respecting a breach of the representations and
warranties contained in subsection 2.4(a) available to the Investor
Certificateholders or the Trustee on behalf of the Investor Certificateholders.
Section 2.5 Covenants of the Transferor. The Transferor
hereby covenants that:
(a) Receivables to be Accounts or General Intangibles.
Except in connection with the enforcement thereof, the Transferor will take no
action to cause any Receivable to be evidenced by any instrument (as defined in
the UCC). Each Receivable shall be payable pursuant to a contract which does
not create a Lien on any goods purchased thereunder. The Transferor will take
no action to cause any Receivable to be anything other than an "account" or
"general intangible" (as defined in the UCC).
(b) Security Interests. Except for the conveyances
hereunder, the Transferor will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on
any Receivable, whether now existing or hereafter created, or any interest
therein; the Transferor will immediately notify the Trustee of the existence of
any Lien on any Receivable, and the Transferor shall defend the right, title
and interest of the Trust in, to and under the Receivables, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Transferor; provided, however, that nothing in this
subsection 2.5(b) shall prevent or be deemed to prohibit the Transferor from
suffering to exist upon any of the Receivables any Liens for municipal or other
local taxes if such taxes shall not at the time be due and payable or if the
Transferor shall currently be contesting the validity thereof in good faith by
appropriate proceedings and shall have set aside on its books adequate reserves
with respect thereto.
(c) Finance Charges and Other Fees. The Transferor,
except as otherwise required by any Requirement of Law, or as is deemed by the
Transferor to be necessary in order for the Transferor to maintain its credit
card business, based upon a good faith assessment by the Transferor, in its
sole discretion, of the nature of the competition in the credit card business,
shall not at any time reduce the Periodic Finance Charges assessed on any
Receivable or other fees on any Account if, as a result of such reduction, the
Transferor's reasonable expectation of the Portfolio Yield as of such date
(after giving effect to any concurrent exercise of a discount option) would be
less than the Base Rate.
(d) Credit Card Agreements and Account Guidelines. The
Transferor shall comply with and perform its obligations under the Credit Card
Agreements relating to the Accounts and the Credit Card Guidelines and all
applicable rules and regulations of VISA U.S.A., Inc. and MasterCard
International Inc., except insofar as any failure to comply or perform would
not materially and adversely affect the rights of the Trust or the
Certificateholders hereunder or under the Certificates. The Transferor may
change the terms and provisions of the Credit Card Agreements or the Credit
Card Guidelines in any respect (including, without limitation, the reduction of
the required minimum monthly payment, the calculation of the amount, or the
timing, of charge offs and the Periodic Finance Charges and other fees to be
assessed thereon) only if such change (i) would not, in the reasonable belief
of the Transferor, cause a Pay Out Event to occur, and (ii) is made applicable
to the comparable segment of the revolving credit card accounts owned and
serviced by the Transferor which have characteristics the same as, or
substantially similar to, the Accounts that are the subject of such change,
except as otherwise restricted by an endorsement, sponsorship, or other
agreement between the Transferor and an unrelated third party or by the terms
of the Credit Card Agreements.
(e) Account Allocations.
(i) in the event that the Transferor is unable
for any reason to transfer Receivables to the Trust in accordance with
the provisions of this Agreement (including, without limitation, by
reason of the application of the provisions of Section 9.2 or an order
by any federal governmental agency having regulatory authority over the
Transferor or any court of competent jurisdiction that the Transferor
not transfer any additional Principal Receivables to the Trust) then,
in any such event, (A) the Transferor agrees to allocate and pay to the
Trust, after the date of such inability, all Collections with respect
to Principal Receivables, and all amounts which would have constituted
Collections with respect to Principal Receivables but for the
Transferor's inability to transfer such Receivables (up to an aggregate
amount equal to the amount of Principal Receivables in the Trust on
such date); (B) the Transferor agrees to have such amounts applied as
Collections in accordance with Article IV; and (C) for only so long as
all Collections and all amounts which would have constituted
Collections are allocated and applied in accordance with clauses (A)
and (B) above, Principal Receivables (and all amounts which would have
constituted Principal Receivables but for the Transferor's inability to
transfer Receivables to the Trust) that are written off as
uncollectible in accordance with this Agreement shall continue to be
allocated in accordance with Article IV, and all amounts that would
have constituted Principal Receivables but for the Transferor's
inability to transfer Receivables to the Trust shall be deemed to be
Principal Receivables for the purpose of calculating (i) the applicable
Investor Percentage with respect to any Series and (ii) the Aggregate
Investor Percentage thereunder. If the Transferor is unable pursuant
to any Requirement of Law to allocate Collections as described above,
the Transferor agrees that it shall in any such event allocate, after
the occurrence of such event, payments on each Account with respect to
the principal balance of such Account first to the oldest principal
balance of such Account and to have such payments applied as
Collections in accordance with Article IV. The parties hereto agree
that Finance Charge Receivables, whenever created, accrued in respect
of Principal Receivables that have been conveyed to the Trust, or that
would have been conveyed to the Trust but for the above described
inability to transfer such Receivables, shall continue to be a part of
the Trust notwithstanding any cessation of the transfer of additional
Principal Receivables to the Trust and that Collections with respect
thereto shall continue to be allocated and paid in accordance with
Article IV.
(ii) In the event that, pursuant to subsection
2.4(d), the Transferor accepts reassignment of an Ineligible Receivable
as a result of a breach of the representations and warranties in
subsection 2.4(b) relating to such Receivable, then, in any such event,
the Transferor agrees to account for payments received with respect to
such Ineligible Receivable separately from its accounting for
Collections on Principal Receivables retained by the Trust. If
payments received from or on behalf of an Obligor are not specifically
applicable either to an Ineligible Receivable of such Obligor
reassigned to the Transferor or to the Receivables of such Obligor
retained in the Trust, then the Transferor agrees to allocate payments
proportionately based on the total amount of Principal Receivables of
such Obligor retained in the Trust and the total amount owing by such
Obligor on any Ineligible Receivables reassigned to the Transferor, and
the portion allocable to any Principal Receivables retained in the
Trust shall be treated as Collections and deposited in accordance with
the provisions of Article IV.
(f) Conveyance of Accounts. The Transferor may transfer
Accounts (i) directly to any Affiliate that executes an agreement assuming with
respect to such Accounts the obligations and duties of the Transferor or
indirectly to any Affiliate in one or more substantially simultaneous
transactions among the Transferor, such Affiliate and any other Affiliates of
the Transferor or (ii) to any other Person, provided that such other Person
executes such an agreement and the Rating Agency Condition is satisfied;
provided, however, that the Transferor shall not be prohibited hereby from
conveying, assigning, exchanging or otherwise transferring the Accounts in
connection with a transaction complying with the provisions of Section 7.2.
Section 2.6 Addition of Accounts.
(a) (i) If, (A) as of the end of any Monthly Period, the
Transferor Interest is less than the Minimum Transferor Interest for
that period the Transferor shall designate additional eligible
MasterCard or VISA accounts from the Bank Portfolio ("Additional
Accounts") to be included as Accounts in a sufficient amount such that
the Transferor Interest after giving effect to such addition will be at
least equal to the Minimum Transferor Interest, or (B) as of the end of
any Monthly Period, the sum of the aggregate amount of Principal
Receivables is less than the Minimum Aggregate Principal Receivables
(as adjusted for any Series having a Companion Series as described in
the Supplement for such Series), the Transferor shall designate
Additional Accounts to be included as Accounts in a sufficient amount
such that the aggregate amount of Principal Receivables will be equal
to or greater than the Minimum Aggregate Principal Receivables.
Receivables from such Additional Accounts shall be transferred to the
Trust on or before the tenth Business Day following the end of such
Monthly Period.
(ii) In lieu of, or in addition to, designating
Additional Accounts pursuant to clause (i) above, the Transferor may,
subject to the conditions specified in paragraph (c) below, convey to
the Trust participations representing undivided interests in a pool of
assets primarily consisting of receivables arising under revolving
credit card accounts or other revolving credit accounts owned by the
Transferor or any Affiliate of any Transferor and collections thereon
("Participations"). The addition of Participations in the Trust
pursuant to this paragraph (a) or paragraph (b) below shall be effected
by an amendment hereto, dated the applicable Addition Date, pursuant to
Section 13.1(a).
(b) In addition to its obligation under subsection 2.6(a),
the Transferor may, but shall not be obligated to, designate from time to time
Additional Accounts of the Transferor to be included as Accounts or
Participations to be included as Trust Assets, in either case as of the
applicable Addition Date.
(c) The Transferor agrees that any such transfer of
Receivables from Additional Accounts, under subsection 2.6(a) or (b) shall
satisfy the following conditions (to the extent provided below):
(i) On or before the fifth Business Day prior to
the Addition Date with respect to additions pursuant to subsection
2.6(a) and on or before the tenth Business Day prior to the Addition
Date with respect to additions pursuant to subsection 2.6(b) (the
"Notice Date"), the Transferor shall give the Trustee, each Rating
Agency and the Servicer written notice that such Additional Accounts or
Participations will be included, which notice shall specify the
approximate aggregate amount of the Receivables to be transferred.
(ii) On or before the Addition Date, the
Transferor shall have delivered to the Trustee a written assignment
(including an acceptance by the Trustee on behalf of the Trust for the
benefit of the Investor Certificateholders) in substantially the form
of Exhibit B (the "Assignment") and the Transferor shall have indicated
in its computer files that the Receivables created in connection with
the Additional Accounts have been transferred to the Trust and, within
five Business Days thereafter, or as otherwise agreed upon between the
Transferor and the Trustee, the Transferor shall have delivered to the
Trustee a computer file or microfiche list containing a true and
complete list of all Additional Accounts, adequately identified by
billing cycle and/or account number and the aggregate amount of the
Receivables in such Additional Accounts, as of the Addition Date, which
computer file or microfiche list shall be as of the date of such
Assignment incorporated into and made a part of such Assignment and
this Agreement.
(iii) The Transferor shall represent and warrant
that (x) each Additional Account is, as of the Addition Date, an
Eligible Account, and each Receivable in such Additional Account is, as
of the Addition Date, an Eligible Receivable, (y) no selection
procedures believed by the Transferor to be materially adverse to the
interests of the Investor Certificateholders were utilized in selecting
the Additional Accounts from the available Eligible Accounts from the
Bank Portfolio, and (z) as of the Addition Date, the Transferor is not
insolvent.
(iv) The Transferor shall represent and warrant
that, as of the Addition Date, the Assignment constitutes either (x) a
valid transfer and assignment to the Trust of all right, title and
interest of the Transferor in and to the Receivables then existing and
thereafter created in the Additional Accounts, and all proceeds (as
defined in the UCC) of such Receivables and Insurance Proceeds relating
thereto and such Receivables and all proceeds thereof and Insurance
Proceeds relating thereto will be held by the Trust free and clear of
any Lien of any Person claiming through or under the Transferor or any
of its Affiliates, except for (i) Liens permitted under subsection
2.5(b), (ii) the interest of the Transferor as Holder of the Transferor
Certificate and (iii) the Transferor's right to receive interest
accruing on, and investment earnings in respect of, the Finance Charge
Account and the Principal Account, or any Series Account as provided in
this Agreement and any related Supplement or (y) a grant of a security
interest (as defined in the UCC), in such property to the Trust, which
is enforceable with respect to then existing Receivables of the
Additional Accounts, the proceeds (as defined in the UCC), thereof and
Insurance Proceeds relating thereto upon the conveyance of such
Receivables to the Trust, and which will be enforceable with respect to
the Receivables thereafter created in respect of Additional Accounts
conveyed on such Addition Date, the proceeds (as defined in the UCC),
thereof and Insurance Proceeds relating thereto upon such creation; and
(z) if the Assignment constitutes the grant of a security interest to
the Trust in such property, upon the filing of a financing statement as
described in Section 2.1 with respect to such Additional Accounts and
in the case of the Receivables thereafter created in such Additional
Accounts and the proceeds (as defined in the UCC), thereof, and
Insurance Proceeds relating thereto, upon such creation, the Trust
shall have a first priority perfected security interest in such
property (subject to Section 9-306 of the UCC), except for Liens
permitted under subsection 2.5(b).
(v) The Transferor shall deliver an Officer's
Certificate substantially in the form of Schedule 2 to Exhibit B to the
Trustee confirming the items set forth in paragraph (iii) above.
(vi) The Transferor shall deliver an Opinion of
Counsel with respect to the Receivables in the Additional Accounts to
the Trustee substantially in the form of Exhibit E.
(vii) the Rating Agency Condition shall have been
satisfied with respect to the inclusion of such accounts as Additional
Accounts pursuant to subsection 2.6(b).
(viii) With respect to a Participation included as
Trust Assets pursuant to subsection 2.6(b), the Transferor shall
deliver a Tax Opinion.
Section 2.7 Removal of Accounts.
(a) Subject to the conditions set forth below, the
Transferor may, but shall not be obligated to, designate Receivables from
Accounts for deletion and removal ("Removed Accounts") from the Trust;
provided, however, that the Transferor shall not make more than one such
designation in any Monthly Period. On or before the fifth Business Day (the
"Removal Notice Date") prior to the date on which the designated Removed
Accounts will be reassigned by the Trustee to the Transferor (the "Removal
Date"), the Transferor shall give the Trustee and the Servicer written notice
that the Receivables from such Removed Accounts are to be reassigned to the
Transferor.
(b) The Transferor shall be permitted to designate and
require reassignment to it of the Receivables from Removed Accounts only upon
satisfaction of the following conditions:
(i) The removal of any Receivables of any
Removed Accounts on any Removal Date shall not, in the reasonable
belief of the Transferor, (a) cause a Pay Out Event to occur;
provided, however, that for the purposes of this subsection 2.7(b)(i),
the Receivables of each Removed Account shall be considered to have
been removed as of the Removal Date, (b) cause the Transferor Interest
to be less than the Minimum Transferor Interest on such Removal Date,
(c) cause the sum of the aggregate amount of Principal Receivables and
the Excess Funding Amount to be less than the Minimum Aggregate
Principal Receivables, or (d) result in the failure to make any
payment specified in the related Supplement with respect to any
Series.
(ii) On or prior to the Removal Date, the
Transferor shall have delivered to the Trustee for execution a written
assignment in substantially the form of Exhibit G (the "Reassignment")
and, within five Business Days thereafter, or as otherwise agreed upon
between the Transferor and the Trustee, the Transferor shall have
delivered to the Trustee a computer file or microfiche list containing
a true and complete list of all Removed Accounts identified by account
number and the aggregate amount of the Receivables in such Removed
Accounts as of the Removal Date, which computer file or microfiche list
shall as of the Removal Date modify and amend and be made a part of
this Agreement.
(iii) The Transferor shall represent and warrant
that no selection procedures believed by the Transferor to be
materially adverse to the interests of the Certificateholders were
utilized in selecting the Removed Accounts to be removed from the
Trust.
(iv) As of the Removal Notice Date, either (a)
the Receivables are not more than 15% delinquent by estimated principal
amount and the weighted averaged delinquency of such Receivables is not
more than 60 days, or (b) the Receivables are not more than 7%
delinquent by estimated principal amount and the weighted average
delinquency of such Receivables does not exceed 90 days.
(v) On or before the tenth Business Day prior to
the Removal Date, each Rating Agency shall have received notice of such
proposed removal of the Receivables of such Accounts and the Transferor
shall have received written confirmation from each Rating Agency that
such removal will satisfy the Rating Agency Condition; and
(vi) The Transferor shall have delivered to the
Trustee an Officer's Certificate confirming the items set forth in
clauses (i) through (v) above. 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.
Upon satisfaction of the above conditions, the Trustee shall
execute and deliver the Reassignment to the Transferor, and the Receivables
from the Removed Accounts shall no longer constitute a part of the Trust.
Section 2.8 Discount Option. The Transferor shall have the
option to designate at any time a fixed or floating percentage (the "Discount
Percentage"), of the amount of Receivables arising in the Accounts on or after
the date such designation becomes effective that would otherwise constitute
Principal Receivables (prior to subtracting from Principal Receivables, Finance
Charge Receivables that are Discount Option Receivables) to be treated as
Finance Charge Receivables. The Transferor may from time to time increase
(subject to the limitations described below), reduce or eliminate the Discount
Percentage for Discount Option Receivables arising in the Accounts on and after
the date of such change. The Transferor must provide 30 days' prior written
notice to the Servicer, the Trustee, each Credit Enhancement Provider and each
Rating Agency of any such exercise of the discount option or increase,
reduction or elimination of the Discount Percentage, and such exercise of the
discount option or increase, reduction or elimination of the Discount
Percentage shall become effective on the date specified therein only if (i) the
Transferor has delivered to the Trustee an Officer's Certificate to the effect
that, based on the facts known to such officer at the time, the Transferor
reasonably believes that such increase, reduction or elimination shall not at
the time of its occurrence cause a Pay Out Event, or an event which with notice
or the lapse of time would constitute a Pay Out Event, to occur with respect to
any Series and (ii) the Transferor, the Servicer and the Trustee shall have
received written confirmation from each Rating Agency that the Rating Agency
Condition is satisfied.
(a) On each Date of Processing after the date on which the
Transferor's exercise of its discount option takes effect, the Transferor shall
treat Discount Option Receivables Collections as Collections of Finance Charge
Receivables.
[End of Article II]
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other Matters
Relating to the Servicer.
(a) Chase Bank agrees to act as the Servicer under this
Agreement. The Investor Certificateholders of each Series by their acceptance
of the related Certificates consent to Chase Bank acting as Servicer.
(b) The Servicer shall service and administer the
Receivables and shall collect payments due under the Receivables in accordance
with its customary and usual servicing procedures for servicing credit card
receivables comparable to the Receivables and in accordance with the Credit
Card Guidelines and shall have full power and authority, acting alone or
through any party properly designated by it hereunder, to do any and all things
in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing and
subject to Section 10.1, the Servicer is hereby authorized and empowered (i) to
make withdrawals from the Collection Account as set forth in this Agreement,
(ii) unless such power and authority is revoked by the Trustee on account of
the occurrence of a Servicer Default pursuant to Section 10.1, to instruct the
Trustee to make withdrawals and payments, from the Finance Charge Account, the
Principal Account, the Excess Funding Account and any Series Account, in
accordance with such instructions as set forth in this Agreement, (iii) unless
such power and authority is revoked by the Trustee on account of the occurrence
of a Servicer Default pursuant to Section 10.1, to instruct the Trustee in
writing, as set forth in this Agreement, (iv) to execute and deliver, on behalf
of the Trust for the benefit of the Certificateholders, any and all instruments
of satisfaction or cancellation, or of partial or full release or discharge,
and all other comparable instruments, with respect to the Receivables and,
after the delinquency of any Receivable and to the extent permitted under and
in compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivables and (v) to make any filings,
reports, notices, applications, registrations with, and to seek any consents or
authorizations from the Securities and Exchange Commission and any state
securities authority on behalf of the Trust as may be necessary or advisable to
comply with any federal or state securities or reporting requirements. The
Trustee agrees that it shall promptly follow the instructions of the Servicer
to withdraw funds from the Principal Account, the Finance Charge Account, the
Excess Funding Account, or any Series Account and to take any action required
under any Credit Enhancement at such time as required under this Agreement.
The Trustee shall execute at the Servicer's written request such documents
prepared by the Transferor and acceptable to the Trustee as may be necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
(c) In the event that the Transferor is unable for any
reason to transfer Receivables to the Trust in accordance with the provisions
of this Agreement (including, without limitation, by reason of the application
of the provisions of Section 9.2 or the order of any federal governmental
agency having regulatory authority over the Transferor or any court of
competent jurisdiction that the Transferor not transfer any additional
Principal Receivables to the Trust) then, in any such event, (A) the Servicer
agrees to allocate, after such date, all collections with respect to Principal
Receivables, and all amounts which would have constituted Collections with
respect to Principal Receivables but for the Transferor's inability to transfer
such Receivables (up to an aggregate amount equal to the aggregate amount of
Principal Receivables in the Trust as of such date) in accordance with
subsection 2.5(e); (B) the Servicer agrees to apply such amounts as Collections
in accordance with Article IV, and (C) for only so long as all Collections and
all amounts which would have constituted Collections are allocated and applied
in accordance with clauses (A) and (B) above, Principal Receivables and all
amounts which would have constituted Principal Receivables but for the
Transferor's inability to transfer Receivables to the Trust that are written
off as uncollectible in accordance with this Agreement shall continue to be
allocated in accordance with Article IV and all amounts which would have
constituted Principal Receivables but for the Transferor's inability to
transfer Receivables to the Trust shall be deemed to be Principal Receivables
for the purpose of calculating the applicable Investor Percentage thereunder.
If the Servicer is unable pursuant to any Requirement of Law to allocate
payments on the Accounts as described above, the Servicer agrees that it shall
in any such event allocate, after the occurrence of such event, payments on
each Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account and to have such payments applied as
Collections in accordance with Article IV. The parties hereto agree that
Finance Charge Receivables, whenever created, accrued in respect of Principal
Receivables which have been conveyed to the Trust, or which would have been
conveyed to the Trust but for the above described inability to transfer such
Receivables, shall continue to be a part of the Trust notwithstanding any
cessation of the transfer of additional Principal Receivables to the Trust and
that Collections with respect thereto shall continue to be allocated and paid
in accordance with Article IV.
(d) In the event that pursuant to subsection 2.4(d), the
Transferor accepts reassignment of an Ineligible Receivable as a result of a
breach of the representations and warranties in subsection 2.4(b) relating to
such Receivable, then, in any such event, the Servicer agrees to account for
payments received with respect to such Ineligible Receivable separately from
its accounting for Collections on Principal Receivables retained by the Trust.
If payments received from or on behalf of an Obligor are not specifically
applicable either to an Ineligible Receivable of such Obligor reassigned to the
Transferor or to Receivables of such Obligor retained in the Trust, then the
Servicer agrees to allocate payments proportionately based on the total amount
of Principal Receivables of such Obligor retained in the Trust and the total
amount owing by such Obligor on any Ineligible Receivables purchased by the
Transferor, and the portion allocable to any Principal Receivables retained in
the Trust shall be treated as Collections and deposited in accordance with the
provisions of Article IV.
(e) The Servicer shall not be obligated to use separate
servicing procedures, offices, employees or accounts for servicing the
Receivables from the procedures, offices, employees and accounts used by the
Servicer in connection with servicing other credit card receivables.
(f) The Servicer shall maintain fidelity bond coverage
insuring against losses through wrongdoing of its officers and employees who
are involved in the servicing of credit card receivables covering such actions
and in such amounts as the Servicer believes to be reasonable from time to
time.
Section 3.2 Servicing Compensation. As compensation for its
servicing activities hereunder and reimbursement for its expenses as set forth
in the immediately following paragraph, the Servicer shall be entitled to
receive a servicing fee prior to the termination of the Trust pursuant to
Section 12.1. The Servicing Fee shall be payable, with respect to each Series,
at the times and in the amounts set forth in the related Supplement. The
Servicing Fee shall be allocated between the Investor Certificates (the
"Investor Servicing Fee") and the Holder of the Transferor Certificate (the
"Transferor Servicing Fee").
The Servicer's expenses include the amounts due to the Trustee
pursuant to Section 11.5 and the reasonable fees and disbursements of
independent public accountants and all other expenses incurred by the Servicer
in connection with its activities hereunder; provided, however that the
Servicer shall not be liable for any liabilities, costs or expenses of the
Trust, the Investor Certificateholders or the Certificate Owners arising under
any tax law, including without limitation any federal, state or local income or
franchise taxes or any other tax imposed on or measured by income (or any
interest or penalties with respect thereto or arising from a failure to comply
therewith). The Servicer shall be required to pay such expenses for its own
account and shall not be entitled to any payment therefor other than the
servicing fee specified herein.
Section 3.3 Representations and Warranties of the Servicer.
Chase Bank, as initial Servicer, hereby makes, and any successor Servicer by
its appointment hereunder shall make the following representations and
warranties on which the Trustee has relied in accepting the Receivables in
Trust and in authenticating the Certificates issued on the Initial Closing
Date:
(a) Organization and Good Standing. The Servicer is a
banking corporation duly organized, validly existing and in good
standing under the laws of the state of its organization and has full
corporate power, authority and legal right to own its properties and
conduct its credit card business as such properties are presently owned
and as such business is presently conducted, and to execute, deliver
and perform its obligations under this Agreement.
(b) Due Qualification. The Servicer is duly qualified to
do business and is in good standing (or is exempt from such
requirement) and has obtained all necessary licenses and approvals,
except to the extent that the failure so to qualify or register would
not have a material adverse effect on the Servicer's ability to perform
its obligations hereunder.
(c) Due Authorization. The execution, delivery, and
performance of this Agreement have been duly authorized by the Servicer
by all necessary corporate action on the part of the Servicer.
(d) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Servicer, enforceable in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereinafter in effect, affecting the enforcement of
creditors' rights in general or the rights of creditors of banking
corporations organized under the laws of the State of New York.
(e) No Violation. The execution and delivery of this
Agreement by the Servicer, and the performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
applicable to the Servicer, will not conflict with, violate, result in
any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default
under, any Requirement of Law applicable to the Servicer or any
indenture, contract, agreement, mortgage, deed of trust or other
instrument to which the Servicer is a party or by which it is bound
except to the extent that the same could not reasonably be expected to
have a material adverse effect on the Certificateholders or any Credit
Enhancement Provider.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Servicer,
threatened against the Servicer before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality
seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement, seeking any
determination or ruling that, in the reasonable judgment of the
Servicer, would materially and adversely affect the performance by the
Servicer of its obligations under this Agreement, or seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement.
(g) Compliance with Requirements of Law. The Servicer
shall duly satisfy all obligations on its part to be fulfilled under or
in connection with each Receivable and the related Account, will
maintain in effect all qualifications required under Requirements of
Law in order to service properly each Receivable and the related
Account and will comply in all material respects with all other
Requirements of Law in connection with servicing each Receivable and
the related Account the failure to comply with which would have a
material adverse effect on the Certificateholders or any Credit
Enhancement Provider.
Section 3.4 Reports and Records for the Trustee.
(a) Daily Reports. On each Business Day during any period
during which the Servicer is required to make daily deposits to the Collection
Account pursuant to Section 4.3(a), the Servicer shall prepare and make
available at the office of the Servicer for inspection by the Trustee a record
setting forth (i) the aggregate amount of Collections processed by the Servicer
on the preceding Business Day and (ii) the aggregate amount of Receivables as
of the close of business on the preceding Business Day.
(b) Monthly Servicer's Certificate. Unless otherwise
stated in the related Supplement with respect to any Series, on each
Determination Date the Servicer shall forward, as provided in Section 13.5, to
the Trustee, the Paying Agent, any Credit Enhancement Provider and each Rating
Agency, a certificate of a Servicing Officer in the form of Exhibit C (which
includes the Schedule thereto specified as such in each Supplement) setting
forth (i) the aggregate amount of Collections processed during the preceding
Monthly Period, (ii) the aggregate amount of the applicable Investor Percentage
of Collections of Principal Receivables processed by the Servicer pursuant to
Article IV during the preceding Monthly Period with respect to each Series then
outstanding, (iii) the aggregate amount of the applicable Investor Percentage
of Collections of Finance Charge Receivables processed by the Servicer pursuant
to Article IV during the preceding Monthly Period with respect to each Series
then outstanding, (iv) the aggregate amount of Receivables processed as of the
end of the last day of the preceding Monthly Period, (v) the balance on deposit
in the Finance Charge Account, the Principal Account or any Series Account
applicable to any Series then outstanding on such Determination Date with
respect to Collections processed by the Servicer during the preceding Monthly
Period, (vi) the aggregate amount, if any, of withdrawals, drawings or payments
under any Credit Enhancement, if any, for each Series then outstanding required
to be made with respect to the previous Monthly Period in the manner provided
in the related Supplement, (vii) the sum of all amounts payable to the Investor
Certificateholders of each Series (or for a Series of more than one Class, each
such Class) on the succeeding Distribution Date in respect of Certificate
Principal and Certificate Interest with respect to such preceding monthly
Period and (viii) such other matters as are set forth in Exhibit C.
Section 3.5 Annual Servicer's Certificate. On or before March
31 of each calendar year, beginning with March 31, 1997, the Servicer will
deliver, as provided in Section 13.5, to the Trustee, any Credit Enhancement
Provider and the Rating Agency, an Officer's Certificate substantially in the
form of Exhibit D stating that (a) a review of the activities of the Servicer
during the twelve-month period ending on December 31 of the preceding calendar
year, or for the initial period, from the Closing Date until December 31, 1996,
and of its performance under this Agreement was made under the supervision of
the officer signing such certificate and (b) to the best of such Officer's
knowledge, based on such review, the Servicer has fully performed all its
obligations under this Agreement throughout such period, or, if there has been
a default in the performance of any such obligation, specifying each such
default known to such officer and the nature and status thereof. A copy of
such certificate may be obtained by any Investor Certificateholder by a request
in writing to the Trustee addressed to the Corporate Trust office.
Section 3.6 Annual Independent Accountants' Servicing Report.
(a) On or before March 31 of each calendar year, beginning
with March 31, 1997, the Servicer shall cause a firm of nationally recognized
independent certified public accountants (who may also render other services to
the Servicer or the Transferor) to furnish, as provided in Section 13.5, a
report addressed to the Trustee, any Credit Enhancement Provider and the
Transferor, to the effect that such firm has examined management's assertion
that, as of the date of such report, the system of internal control over
servicing of securitized credit card receivables met the criteria for effective
internal control described in the report entitled "Internal Control -
Integrated Framework" issued by the Committee of Sponsoring Organizations of
the Xxxxxxxx Commission ("COSO") and that in their opinion, management's
assertion is fairly stated, in all material respects. A copy of such report
shall be distributed by the Trustee to the Rating Agency and will be available
for distribution to Certificateholders upon written request therefor addressed
to the Trustee at the Corporate Trust Office.
(b) On or before March 31 of each calendar year, beginning
with March 31, 1997, the Servicer shall cause a firm of nationally recognized
independent certified public accountants (who may also render other services to
the Servicer or the Transferor) to furnish, as provided in Section 13.5, a
report, prepared using generally accepted attestation standards, addressed to
the Trustee, any Credit Enhancement Provider and the Transferor, to the effect
that they have compared the amounts set forth in the monthly certificates
forwarded by the Servicer pursuant to subsection 3.4(c) during the period
covered by such report (which shall be the twelve-month period ending on
December 31 of the preceding calendar year, or for the initial period, from the
Closing Date until December 31, 1996) with the Servicer's computer reports
which were the source of such amounts and found them to be in agreement or
shall disclose any exceptions noted. Additionally, such firm shall recalculate
the mathematical accuracy of amounts derived in the monthly certificates. A
copy of such report shall be distributed by the Trustee to the Rating Agency
and will be available for distribution to Certificateholders upon written
request therefor addressed to the Trustee at the Corporate Trust Office.
Section 3.7 Tax Treatment. The Transferor has structured this
Agreement and the Investor Certificates with the intention that the Investor
Certificates will qualify under applicable federal, state, local and foreign
tax law as indebtedness. The Transferor, the Servicer, the Holder of the
Transferor Certificate, each Investor Certificateholder, and each Certificate
Owner, agree to treat and to take no action inconsistent with the treatment of
the Investor Certificates (or beneficial interest therein) as indebtedness for
purposes of federal, state, local and foreign income or franchise taxes and any
other tax imposed on or measured by income. Each Investor Certificateholder
and the Holder of the Transferor Certificate, by acceptance of its Certificate
and each Certificate Owner, by acquisition of a beneficial interest in a
Certificate, agree to be bound by the provisions of this section 3.7. Each
Certificateholder agrees that it will cause any Certificate Owner acquiring an
interest in a Certificate through it to comply with this Agreement as to
treatment as indebtedness under applicable tax law, as described in this
Section 3.7.
Section 3.8 Notices to the Transferor. In the event that the
Transferor is no longer acting as Servicer, any Successor Servicer appointed
pursuant to Section 10.2 shall deliver or make available to the Transferor each
certificate and report required to be prepared, forwarded or delivered
thereafter pursuant to Sections 3.4, 3.5 and 3.6.
[End of Article III]
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders. Each Series of
Investor Certificates shall represent Undivided Interests in the Trust,
including the benefits of any Credit Enhancement issued with respect to such
Series and the right to receive the Collections and other amounts at the times
and in the amounts specified in this Article IV to be deposited in the Investor
Accounts and any other Series Account (if so specified in the related
Supplement) or to be paid to the Investor Certificateholders of such Series;
provided, however, that the aggregate interest represented by such Certificates
at any time in the Principal Receivables shall not exceed an amount equal to
the Investor Interest at such time. The Transferor Certificate shall represent
the remaining undivided interest in the Trust, including the right to receive
the Collections and other amounts at the times and in the amounts specified in
this Article IV to be paid to the Holder of the Transferor Certificate;
provided, however, that the aggregate interest represented by such Transferor
Certificate at any time in the Principal Receivables shall not exceed the
Transferor Interest at such time and such Certificate shall not represent any
interest in the Investor Accounts, except as provided in this Agreement, or the
benefits of any Credit Enhancement issued with respect to any Series.
Section 4.2 Establishment of Accounts.
(a) The Collection Account. The Servicer, for the benefit
of the Certificateholders, shall establish and maintain in the name of the
Trustee, on behalf of the Trust, an Eligible Deposit Account bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Certificateholders (the "Collection Account").
Pursuant to authority granted to it pursuant to subsection 3.1(b), the Servicer
shall have the revocable power to withdraw funds from the Collection Account
for the purposes of carrying out its duties hereunder.
(b) The Finance Charge and Principal Accounts. The
Trustee, for the benefit of the Investor Certificateholders, shall establish
and maintain in the State of New York with the Paying Agent in the name of the
Trust two Eligible Deposit Accounts (the "Finance Charge Account" and the
"Principal Account", respectively), bearing a designation clearly indicating
that the funds therein are held for the benefit of the Investor
Certificateholders; provided, however, that each of such accounts may be
established as sub-accounts of the Collection Account. The Trustee shall
possess all right, title and interest in all funds on deposit from time to time
in the Finance Charge Account and the Principal Account and in all proceeds
thereof. The Finance Charge Account and the Principal Account shall be under
the sole dominion and control of the Trustee for the benefit of the Investor
Certificateholders. Pursuant to authority granted to it hereunder, the
Servicer shall have the revocable power to instruct the Trustee to withdraw
funds from the Finance Charge Account and Principal Account for the purpose of
carrying out the Servicer's duties hereunder. The Trustee at all times shall
maintain accurate records reflecting each transaction in the Principal Account
and the Finance Charge Account and that funds held therein shall at all times
be held in trust for the benefit of the Investor Certificateholders.
(c) The Distribution Account. The Trustee, for the
benefit of the Investor Certificateholders, shall cause to be established and
maintained in the name of the Trust, an Eligible Deposit Account bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Investor Certificateholders (the "Distribution
Account"). The Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Distribution Account and in all
proceeds thereof. The Distribution Account shall be under the sole dominion
and control of the Trustee for the benefit of the Investor Certificateholders.
(d) The Excess Funding Account. The Trustee, for the benefit
of the Investor Certificateholders, shall establish and maintain an Eligible
Deposit Account bearing a designation clearly indicating that the funds therein
are held for the benefit of the Investor Certificateholders (the "Excess
Funding Account"). The Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Excess Funding Account and in all
proceeds thereof. The Excess Funding Account shall be under the sole dominion
and control of the Trustee for the benefit of the Investor Certificateholders.
If, at any time, the Excess Funding Account ceases to be an Eligible Deposit
Account, the Trustee shall notify the Rating Agency and within 10 Business Days
establish a new Eligible Deposit Account which shall be designated as the new
Excess Funding Account and shall transfer any cash or any investments to such
new Excess Funding Account. From the date such new Excess Funding Account is
established, it shall be the "Excess Funding Account." Pursuant to authority
granted to it hereunder, the Servicer shall have the revocable power to
instruct the Trustee to withdraw funds from the Excess Funding Account for the
purpose of carrying out the Servicer's duties hereunder. The Trustee at all
times shall maintain accurate records reflecting each transaction in the Excess
Funding Account and that funds held therein shall at all times be held in trust
for the benefit of the Investor Certificateholders.
(e) Series Accounts. If so provided in the related
Supplement, the Trustee, for the benefit of the Investor Certificateholders,
shall cause to be established and maintained in the name of the Trust, one or
more Series Accounts. Each such Series Account shall bear a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Investor Certificateholders of such Series. Each such Series Account will
be an Eligible Deposit Account, if so provided in the related Supplement and
will have the other features and be applied as set forth in the related
Supplement.
(f) Administration of the Finance Charge, Principal
Accounts and Excess Funding Account. Funds on deposit in the Principal
Account, the Finance Charge Account and the Excess Funding Account shall at all
times be invested in Permitted Investments. Any such investment shall mature
and such funds shall be available for withdrawal on or prior to the Transfer
Date related to the Monthly Period in which such funds were processed for
collection, or if so specified in the related Supplement, immediately preceding
a Distribution Date. The Trustee shall maintain for the benefit of the
Investor Certificateholders possession of the negotiable instruments or
securities evidencing the Permitted Investments described in clause (a) of the
definition thereof from the time of purchase thereof until the time of sale or
maturity; provided, however that no such investment shall be disposed of prior
to its maturity date. At the end of each month, all interest and earnings (net
of losses and investment expenses) on funds on deposit in the Principal Account
and the Finance Charge Account shall be deposited by the Trustee in an Eligible
Deposit Account in the name of the Transferor, or a Person designated in
writing by the Servicer, which shall not constitute a part of the Trust, or
shall otherwise be turned over by the Trustee to the Transferor not less
frequently than monthly, and all interest and earnings (net of losses and
investment expenses) on funds on deposit in the Excess Funding Account shall be
deposited by the Trustee in the Finance Charge Account for application as
Collections of Finance Charge Receivables. Subject to the restrictions set
forth above, the Servicer, or a Person designated in writing by the Servicer,
of which the Trustee shall have received written notification thereof, shall
instruct the Trustee with respect to the investment of funds on deposit in the
Principal Account and the Finance Charge Account. For purposes of determining
the availability of funds or the balances in the Finance Charge Account, the
Principal Account and, except as provided in the second preceding sentence, the
Excess Funding Account, for any reason under this Agreement, all investment
earnings on such funds shall be deemed not to be available or on deposit.
Section 4.3 Collections and Allocations.
(a) Collections. Except as provided below, the Servicer
shall deposit all Collections in the Collection Account as promptly as possible
after the Date of Processing of such Collections, but in no event later than
the second Business Day following such Date of Processing. In the event of the
insolvency of the Servicer, then, immediately upon the occurrence of such event
and thereafter, the Servicer shall deposit all Collections into the Collection
Account, and in no such event shall the Servicer deposit any Collections
thereafter into any account established, held or maintained with the Servicer.
The Servicer shall allocate such amounts to each Series of
Investor Certificates and to the Holder of the Transferor Certificate in
accordance with this Article IV and shall withdraw the required amounts from
the Collection Account or pay such amounts to the Holder of the Transferor
Certificate in accordance with this Article IV, in both cases as modified by
any Supplement. The Servicer shall make such deposits or payments on the date
indicated therein in immediately available funds or as otherwise provided in
the Supplement for any Series of Certificates with respect to such Series.
Notwithstanding anything in this Agreement to the contrary, for
so long as, and only so long as, the Transferor shall remain the Servicer
hereunder, and (a)(i) the Servicer provides to the Trustee a letter of credit
covering risk collection of the Servicer, and (ii) the Transferor shall not
have received a notice from any Rating Agency that such a letter of credit
would result in the lowering of such Rating Agency's then-existing rating of
the Investor Certificates, or (b) the Servicer shall have and maintain a
certificate of deposit or short-term deposit rating of "P-1" by Moody's and of
"A-1" by Standard & Poor's, the Servicer need not deposit Collections into the
Collection Account, the Principal Account, the Finance Charge Account, the
Excess Funding Account or any Series Account, as provided in any Supplement, or
make payments to the Holder of the Transferor Certificate as provided in
Article IV, but may make such deposits, payments and withdrawals on each
Transfer Date in an amount equal to the net amount of such deposits, payments
and withdrawals which would have been made but for the provisions of this
paragraph.
Notwithstanding anything else in this Agreement to the
contrary, with respect to any Monthly Period, whether the Servicer is required
to make monthly or daily deposits from the Collection Account into the Finance
Charge Account, the Principal Account, the Excess Funding Account or any Series
Account, as provided in any Supplement, (i) the Servicer will only be required
to deposit Collections from the Collection Account into the Finance Charge
Account, the Principal Account, the Excess Funding Account or any Series
Account in an amount equal to the lesser of (x) the amount required to be
deposited into any such deposit account pursuant to the terms of this Agreement
or any Supplement and (y) the amount required to be distributed on or prior to
the related Distribution Date to Investor Certificateholders or to any Credit
Enhancement Provider pursuant to the terms of any Supplement or agreement
relating to such Credit Enhancement and (ii) if at any time prior to such
Distribution Date the amount of Collections deposited in the Collection Account
exceeds the amount required to be deposited pursuant to clause (i) above, the
Servicer will be permitted to withdraw the excess from the Collection Account.
(b) Allocations for the Transferor Certificate.
Throughout the existence of the Trust, unless otherwise stated in any
Supplement, the Servicer shall allocate to the Holder of the Transferor
Certificate an amount equal to the product of (A) the Transferor Percentage and
(B) the aggregate amount of such Collections allocated to Principal Receivables
and Finance Charge Receivables, respectively, in respect of each Monthly
Period. Notwithstanding anything in this Agreement to the contrary, unless
otherwise stated in any Supplement, the Servicer need not deposit this amount
or any other amounts so allocated to the Transferor Certificate pursuant to any
Supplement into the Collection Account and shall pay, or be deemed to pay, such
amounts as collected to the Holder of the Transferor Certificate.
(c) Adjustments for Miscellaneous Credits and Fraudulent
Charges. The Servicer shall be obligated to reduce on a net basis in each
Monthly Period the aggregate amount of Principal Receivables used to calculate
the Transferor Interest as provided in this subsection 4.3(c) (a "Credit
Adjustment") with respect to any Principal Receivable (i) which was created in
respect of merchandise refused or returned by the Obligor thereunder or as to
which the Obligor thereunder has asserted a counterclaim or defense, (ii) which
is reduced by the Servicer by any rebate, refund, charge-back or adjustment
(including Servicer errors) or (iii) which was created as a result of a
fraudulent or counterfeit charge.
In the event that the inclusion of the amount of a Credit
Adjustment in the calculation of the Transferor Interest would cause the
Transferor Interest to be an amount less than the Minimum Transferor Interest,
the Transferor shall make a deposit, no later than the Business Day following
the Date of Processing of such Credit Adjustment, in the Excess Funding Account
in immediately available funds in an amount equal to the amount by which such
Credit Adjustment would cause the Transferor Interest to be less than the
Minimum Transferor Interest on such Date of Processing.
(d) Transfer of Defaulted Accounts. Unless otherwise
provided in any Supplement, on the date on which an Account becomes a Defaulted
Account, the Trust shall automatically and without further action or
consideration be deemed to transfer, set over, and otherwise convey to the
Transferor, without recourse, representation or warranty, all the right, title
and interest of the Trust in and to Receivables in such Defaulted Account, all
monies due or to become due with respect to such Receivables, all proceeds of
such Receivables and Insurance Proceeds relating to such Receivables allocable
to the Trust with respect to such Receivables. Notwithstanding any such
transfer of accounts, amounts recovered with respect to such defaulted accounts
may still be allocated to the Trust to the extent provided for in the
definition of Recoveries.
(e) Operation of Excess Funding Account. On each
Determination Date on which one or more Series is in its Amortization Period or
Accumulation Period, the Servicer shall determine the aggregate amount of
Principal Shortfalls, if any, with respect to each such Series that is a
Principal Sharing Series, and the Servicer shall instruct the Trustee to
withdraw such amount (up to the Excess Funding Amount) from the Excess Funding
Account on the next succeeding Transfer Date and deposit such amount in the
Distribution Account for allocation among each such Series as Shared Principal
Collections as specified in each related Supplement. On any Business Day on
which the Transferor Interest exceeds the Minimum Transferor Interest, the
Servicer shall instruct the Trustee to withdraw the amount of such excess (up
to the Excess Funding Amount) from the Excess Funding Account on such day and
pay such amount to the Holder of the Transferor Certificate.
Section 4.4 Allocations During Funding Period. To the extent
that the Servicer establishes an Eligible Deposit Account as a pre-funding
account (the "Pre-Funding Account") with respect to any Series, bearing a
designation indicating that the funds deposited therein are for the benefit of
such Series, during the period (the "Funding Period"), as set forth in the
related Supplement, that the Pre-Funding Account maintains a balance, the date
upon which an increase in the Invested Amount of such Series in accordance with
the terms of such related Supplement occurs shall be treated as an Addition
Date solely for the purpose of calculating the applicable Investor Percentages.
Such Addition Date shall be deemed to occur on the date of each such increase
and the applicable Investor Percentages shall be calculated accordingly.
Section 4.5 Certain Fees.
(a) On or prior to each Determination Date
following a Monthly Period all of the days of which follow the Fee
Determination Date, the Transferor shall notify the Servicer of the amounts of
Late Fees and similar fees and charges and Special Fees to be included as
Collections of Finance Charge Receivables arising from the Chase Accounts with
respect to the preceding Monthly Period. Until the date specified by the
Servicer in an Officer's Certificate delivered to the Trustee as a date after
which the Servicer can compute the actual amount of Collections of such fees
and charges (the "Fee Determination Date"), such amounts shall be deemed to be
equal to the product of (x) the amount of Late Fees and similar fees and
charges and Special Fees, as the case may be, billed with respect to such
Monthly Period and (y) a fraction, the numerator of which is the amount of
Collections of Periodic Finance Charges and Annual Membership Fees arising from
the Chase Accounts with respect to such Monthly Period, and the denominator of
which is the amount of Periodic Finance Charges and Annual Membership Fees
arising from the Chase Accounts billed with respect to such Monthly Period.
(b) On and after the Fee Determination Date, in
the case of the Chase Accounts, and at all times, in the case of the Chemical
Accounts, the amounts of Late Fees and similar fees and charges and Special
Fees to be included as Collections of Finance Charge Receivables shall be the
actual amounts of such fees and charges, as computed by the Servicer.
(c) On each Transfer Date prior to the first
Monthly Period all of the days of which follow the Fee Determination Date, the
Transferor shall pay to the Servicer and the Servicer shall deposit into the
Collection Account, for allocation as Collections of Finance Charge Receivables
in the manner provided in Article IV (in immediately available funds) the
amounts of Late Fees and similar fees and charges and Special Fees arising from
the Chase Accounts to be so included as Collections of Finance Charge
Receivables with respect to the preceding Monthly Period, as calculated
pursuant to this Section 4.5.
[THE REMAINDER OF ARTICLE IV IS RESERVED AND SHALL BE SPECIFIED
IN ANY SUPPLEMENT WITH RESPECT TO ANY SERIES]
[End of Article IV]
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
[End of Article V]
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates. Subject to Sections 6.10 and
6.13, the Investor Certificates of each Series and any Class thereof may be
issued in bearer form (the "Bearer Certificates") with attached interest
coupons and a special coupon (collectively, the "Coupons") or in fully
registered form (the "Registered Certificates"), and shall be substantially in
the form of the exhibits with respect thereto attached to the related
Supplement. The Transferor Certificate shall be substantially in the form of
Exhibit A. The Investor Certificates and the Transferor Certificate shall,
upon issue pursuant hereto or to Section 6.9 or Section 6.10, be executed and
delivered by the Transferor to the Trustee for authentication and redelivery as
provided in Sections 2.1 and 6.2. Any Investor Certificate shall be issuable
in a minimum denomination of $1,000 Undivided Interest and integral multiples
thereof, unless otherwise specified in any Supplement. The Transferor
Certificate shall be issued as a single certificate. Each Certificate shall be
executed by manual or facsimile signature on behalf of the Transferor by its
President or any Vice President. Certificates bearing the manual or facsimile
signature of the individual who was, at the time when such signature was
affixed, authorized to sign on behalf of the Transferor or the Trustee shall
not be rendered invalid, notwithstanding that such individual has ceased to be
so authorized prior to the authentication and delivery of such Certificates or
does not hold such office at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by or on
behalf of the Trustee by the manual signature of a duly authorized signatory,
and such certificate upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication
except Bearer Certificates which shall be dated the applicable Issuance Date as
provided in the related Supplement.
Section 6.2 Authentication of Certificates. Contemporaneously
with the initial assignment and transfer of the Receivables, whether now
existing or hereafter created (other than Receivables in Additional Accounts)
and the other components to the Trust, the Trustee shall authenticate and
deliver the initial Series of Investor Certificates, upon the written order of
the Transferor, to the underwriters for the sale of the Book-Entry Certificates
evidenced by such Investor Certificates, and against payment to the Transferor
of the Initial Investor Interest (net of any purchase or underwriting
discount). Upon the receipt of such payment and the issuance of the Investor
Certificates, such Investor Certificates shall be fully paid and
non-assessable. The Trustee shall authenticate and deliver the Transferor
Certificate to the Transferor simultaneously with its delivery to the
Transferor of the initial Series of Investor Certificates. Upon an Exchange as
provided in Section 6.9 and the satisfaction of certain other conditions
specified therein, the Trustee shall authenticate and deliver the Investor
Certificates of additional Series (with the designation provided in the related
Supplement), upon the order of the Transferor, to the Persons designated in
such Supplement. Upon the order of the Transferor, the Certificates of any
Series shall be duly authenticated by or on behalf of the Trustee, in
authorized denominations. If specified in the related Supplement for any
Series, the Trustee shall authenticate and deliver outside the United States
the Global Certificate that is issued upon original issuance thereof, upon the
written order of the Transferor, to the Depository against payment of the
purchase price therefor. If specified in the related Supplement for any
Series, the Trustee shall authenticate Book-Entry Certificates that are issued
upon original issuance thereof, upon the written order of the Transferor, to a
Clearing Agency or is nominee as provided in Section 6.10 against payment of
the purchase price thereof.
Section 6.3 Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at the office or
agency to be maintained by a transfer agent and registrar (the "Transfer Agent
and Registrar"), in accordance with the provisions of Section 11.16, a register
(the "Certificate Register") in which, subject to such reasonable regulations
as it may prescribe, the Transfer Agent and Registrar shall provide for the
registration of the Investor Certificates of each Series (unless otherwise
provided in the related Supplement) and of transfers and exchanges of the
Investor Certificates as herein provided. Chase Bank is hereby initially
appointed Transfer Agent and Registrar for the purposes of registering the
Investor Certificates and transfers and exchanges of the Investor Certificates
as herein provided. If any form of Investor Certificate is issued as a Global
Certificate, the Trustee may, or if and so long as any Series of Investor
Certificates are listed an the Luxembourg Stock Exchange and such exchange
shall so require, the Trustee shall appoint a co-transfer agent and
co-registrar in Luxembourg or another European city. Any reference in this
Agreement to the Transfer Agent and Registrar shall include any co-transfer
agent and co-registrar unless the context otherwise requires. Chase Bank shall
be permitted to resign as Transfer Agent and Registrar upon 30 days' written
notice to the Servicer. In the event that Chase Bank shall no longer be the
Transfer Agent and Registrar, the Trustee shall appoint a successor Transfer
Agent and Registrar.
Upon surrender for registration of transfer of any Certificate
at any office or agency of the Transfer Agent and Registrar, the Transferor
shall execute, subject to the provisions of subsection 6.3(c), and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of like
aggregate Undivided Interests; provided, however that the provisions of this
paragraph shall not apply to Bearer Certificates.
At the option of an Investor Certificateholder, Investor
Certificates may be exchanged for other Investor Certificates of the same
Series in authorized denominations of like aggregate Undivided Interests, upon
surrender of the Investor Certificates to be exchanged at any such office or
agency. At the option of any Holder of Registered Certificates, Registered
Certificates may be exchanged for other Registered Certificates of the same
Series in authorized denominations of like aggregate Undivided Interests in the
Trust, upon surrender of the Registered Certificates to be exchanged at any
office or agency of the Transfer Agent and Registrar maintained for such
purpose. At the option of a Bearer Certificateholder, subject to applicable
laws and regulations (including without limitation, the Bearer Rules), Bearer
Certificates may be exchanged for other Bearer Certificates or Registered
Certificates of the same Series in authorized denominations of like aggregate
Undivided Interests in the Trust, in the manner specified in the Supplement for
such Series, upon surrender of the Bearer Certificates to be exchanged at an
office or agency of the Transfer Agent and Registrar located outside the United
States. Each Bearer Certificate surrendered pursuant to this Section 6.3 shall
have attached thereto (or be accompanied by) all unmatured Coupons, provided
that any Bearer Certificate so surrendered after the close of business on the
Record Date preceding the relevant Distribution Date after the related Series
Termination Date need not have attached the coupons relating to such
Distribution Date.
Whenever any Investor Certificates of any Series are so
surrendered for exchange, the Transferor shall execute, and the Trustee shall
authenticate and (unless the Transfer Agent and Registrar is different than the
Trustee, in which case the Transfer Agent and Registrar shall) deliver, the
Investor Certificates of such Series which the Certificateholder making the
exchange is entitled to receive. Every Investor Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in a form satisfactory to the Trustee and the
Transfer Agent and Registrar duly executed by the Certificate holder thereof or
his attorney-in-fact duly authorized in writing.
The preceding provisions of this Section 6.3 notwithstanding,
the Trustee or the Transfer Agent and Registrar, as the case may be, shall not
be required to register the transfer of or exchange any Investor Certificate of
any Series for a period of 15 days preceding the due date for any payment with
respect to the Investor Certificates of such Series.
Unless otherwise provided in the related Supplement, no service
charge shall be made for any registration of transfer or exchange of
Certificates, but the Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
All Investor Certificates (together with any Coupons attached
to Bearer Certificates) surrendered for registration of transfer and exchange
shall be canceled by the Transfer Agent and Registrar and disposed of in a
manner satisfactory to the Trustee. The Trustee shall cancel and destroy any
Global Certificates upon its exchange in full for Definitive Certificates and
shall deliver a certificate of destruction to the Transferor. Such certificate
shall also state that a certificate or certificates of each Foreign Clearing
Agency to the effect referred to in Section 6.13 was received with respect to
each portion of such Global Certificate exchanged for Definitive Certificates.
The Transferor shall execute and deliver to the Trustee or the
Transfer Agent and Registrar, as applicable, Bearer Certificates and Registered
Certificates in such amounts and at such times as are necessary to enable the
Trustee to fulfill its responsibilities under this Agreement and the
Certificates.
(b) Except as provided in Section 6.9 or 7.2 or in any
Supplement, in no event shall the Transferor Certificate or any interest
therein be transferred hereunder, in whole or in part, unless the Trustee shall
have consented in writing to such transfer; provided, however, that the Trustee
may not withhold such consent if it shall have received (1) written
confirmation from each Rating Agency that such transfer will satisfy the Rating
Agency Condition and (2) a Tax Opinion with respect to such transfer.
(c) Unless otherwise provided in the related Supplement,
registration of transfer of Registered Certificates containing a legend
relating to the restrictions on transfer of such Registered Certificates (which
legend shall be set forth in the Supplement relating to such Investor
Certificates) shall be effected only if the conditions set forth in such
related Supplement are satisfied.
Whenever a Registered Certificate containing the legend sat
forth in the related Supplement is presented to the Transfer Agent and
Registrar for registration of transfer, the Transfer Agent and Registrar shall
promptly seek instructions from the Servicer regarding such transfer. The
Transfer Agent and Registrar and the Trustee shall be entitled to receive
written instructions signed by a Servicing Officer prior to registering any
such transfer or authenticating new Registered Certificates, as the case may
be. The Servicer hereby agrees to indemnify the Transfer Agent and Registrar
and the Trustee and to hold each of them harmless against any loss, liability
or expense incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by them in reliance on any
such written instructions furnished pursuant to this subsection 6.3(c).
(d) The Transfer Agent and Registrar will maintain at its
expense in the Borough of Manhattan, the City of New York (and subject to this
Section 6.3, if specified in the related Supplement for any Series, any other
city designated in such Supplement) an office or offices or an agency or
agencies where Investor Certificates of such Series may be surrendered for
registration of transfer or exchange.
Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate (together, in the case of Bearer Certificates,
with all unmatured Coupons, if any, appertaining thereto) is surrendered to the
Transfer Agent and Registrar, or the Transfer Agent and Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Transfer Agent and Registrar and
the Trustee such security or indemnity as may be reasonably required by them to
save each of them harmless, then, in the absence of notice to the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Transferor
shall execute and the Trustee shall authenticate and (unless the Transfer Agent
and Registrar is different from the Trustee, in which case the Transfer Agent
and Registrar shall) deliver (in compliance with applicable law), in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of like tenor and aggregate Undivided Interest. In connection
with the issuance of any new Certificate under this Section 6.4, the Trustee or
the Transfer Agent and Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Transfer Agent and Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 6.4 shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed certificate shall be found at any
time.
Section 6.5 Persons Deemed Owners. Prior to due presentation
of a Certificate for registration of transfer, the Trustee, the Paying Agent,
the Transfer Agent and Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Article V
(as described in any Supplement) and for all other purposes whatsoever, and
neither the Trustee, the Paying Agent, the Transfer Agent and Registrar nor any
agent of any of them shall be affected by any notice to the contrary; provided,
however, that in determining whether the holders of Investor Certificates
evidencing the requisite Undivided Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, unless otherwise
expressly specified herein or in the related Supplement, Investor Certificates
owned by the Transferor, the Servicer or any Affiliate thereof shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Investor
Certificates which a Responsible Officer in the Corporate Trust Office of the
Trustee knows to be so owned shall be so disregarded. Investor Certificates so
owned that have been pledged in good faith shall not be disregarded as
outstanding, if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Investor Certificates and that
the pledgee is not the Transferor, the Servicer or an Affiliate thereof.
In the case of a Bearer Certificate, the Trustee, the Paying
Agent, the Transfer Agent and Registrar and any agent of any of them may treat
the holder of a Bearer Certificate or Coupon as the owner of such Bearer
Certificate or Coupon for the purpose of receiving distributions pursuant to
Article IV and Article XII and for all other purposes whatsoever, and neither
the Trustee, the Paying Agent, the Transfer Agent and Registrar nor any agent
of any of them shall be affected by any notice to the contrary. Certificates
so owned which have been pledged in good faith shall not be disregarded and may
be regarded as outstanding, if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Investor
Certificates and that the pledgee is not the Transferor, the Servicer or an
Affiliate thereof.
Section 6.6 Appointment of Paying Agent.
(a) The Paying Agent shall make distributions to Investor
Certificateholders from the appropriate account or accounts maintained for the
benefit of Certificateholders as specified in this Agreement or the related
Supplement for any Series pursuant to Articles IV and V hereof. Any Paying
Agent shall have the revocable power to withdraw funds from such appropriate
account or accounts for the purpose of making distributions referred to above.
The Trustee (or the Servicer if the Trustee is the Paying Agent) may revoke
such power and remove the Paying Agent, if the Trustee (or the Servicer if the
Trustee is the Paying Agent) determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this Agreement in any
material respect or for other good cause. The Trustee (or the Servicer if the
Trustee is the Paying Agent) shall notify the Rating Agency of the removal of
any Paying Agent. The Paying Agent, unless the Supplement with respect to any
Series states otherwise, shall initially be Chase Bank. If any form of
Investor Certificate is issued as a Global Certificate, or if and so long as
any Series of Investor Certificates are listed on the Luxembourg Stock Exchange
and such exchange shall so require, the Trustee shall appoint a co-paying agent
in Luxembourg or another European city. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Servicer. In the
event that any Paying Agent shall no longer be the Paying Agent, the Trustee
shall appoint a successor to act as Paying Agent (which shall be a bank or
trust company). The provisions of Sections 11.1, 11.2 and 11.3 shall apply to
the Trustee also in the capacity of Paying Agent, for so long as the Trustee
shall act as Paying Agent. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
If specified in the related Supplement for any Series, so long
as the Investor Certificates of such Series are outstanding, the Transferor
shall maintain a co-paying agent in New York City (for Registered Certificates
only) or any other city designated in such Supplement which, if and so long as
any Series of Investor Certificates is listed on the Luxembourg Stock Exchange
or other stock exchange and such exchange so requires, shall be in Luxembourg
or the location required by such other stock exchange.
(b) The Trustee shall cause the Paying Agent (other than
itself) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums, if any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders and shall agree, and if the Trustee is the
Paying Agent it hereby agrees, that it shall comply with all requirements of
the Internal Revenue Code regarding the withholding by the Trustee of payments
in respect of federal income taxes due from Certificate Owners.
Section 6.7 Access to List of Certificateholders' Names and
Addresses. The Trustee will furnish or cause to be furnished by the Transfer
Agent and Registrar to the Servicer or the Paying Agent, within five Business
Days after receipt by the Trustee of a request therefor from the Servicer or
the Paying Agent, respectively, in writing, a list in such form as the Servicer
or the Paying Agent may reasonably require, of the names and addresses of the
Investor Certificateholders as of the most recent Record Date for payment of
distributions to Investor Certificateholders. Unless otherwise provided in the
related Supplement, holders of Investor Certificates evidencing Undivided
Interests aggregating not less than 10% of the Investor Interest of the
Investor Certificates of any Series (the "Applicants") may apply in writing to
the Trustee, and if such application states that the Applicants desire to
communicate with other Investor Certificateholders of any Series with respect
to their rights under this Agreement or under the Investor Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee, after having been adequately indemnified by such
Applicants for its costs and expenses, shall afford or shall cause the Transfer
Agent and Registrar to afford such Applicants access during normal business
hours to the most recent list of Certificateholders held by the Trustee and
shall give the Servicer notice that such request has been made, within five
Business Days after the receipt of such application. Such list shall be as of
a date no more than 45 days prior to the date of receipt of such Applicants'
request. Every Certificateholder, by receiving and holding a Certificate,
agrees with the Trustee that neither the Trustee, the Transfer Agent and
Registrar, nor any of their respective agents shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Certificateholders hereunder, regardless of the source from which such
information was obtained.
Section 6.8 Authenticating Agent.
(a) The Trustee may appoint one or more authenticating
agents with respect to the Certificates which shall be authorized to act on
behalf of the Trustee in authenticating the Certificates in connection with the
issuance, delivery, registration of transfer, exchange or repayment of the
Certificates. Whenever reference is made in this Agreement to the
authentication of Certificates by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent.
Each authenticating agent must be acceptable to the Transferor.
(b) Any institution succeeding to the corporate agency
business of an authenticating agent shall continue to be an authenticating
agent without the execution or filing of any paper or any further act on the
part of the Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by
giving written notice of resignation to the Trustee and to the Transferor. The
Trustee may at any time terminate the agency of an authenticating agent by
giving notice of termination to such authenticating agent and to the
Transferor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to be
acceptable to the Trustee or the Transferor, the Trustee promptly may appoint a
successor authenticating agent. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like affect as if
originally named as an authenticating agent. No successor authenticating agent
shall be appointed unless acceptable to the Trustee and the Transferor.
(d) The Trustee agrees to pay each authenticating agent
from time to time reasonable compensation for its services under this Section
6.8, and the Trustee shall be entitled to be reimbursed and the Servicer shall
reimburse the Trustee for such reasonable payments actually made, subject to
the provisions of Section 11.5.
(e) The provisions of Sections 11.1, 11.2 and 11.3 shall
be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section
6.8, the Certificates may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the certificates described in the Pooling and
Servicing Agreement.
______________________________
as Authenticating Agent
for the Trustee,
By:___________________________
Authorized signatory
Section 6.9 Tender of Transferor Certificate.
(a) Upon any Exchange, the Trustee shall issue to the
Holder of the Transferor Certificate under Section 6.1, for execution and
redelivery to the Trustee for authentication under Section 6.2, one or more new
Series of Investor Certificates. Any such Series of Investor Certificates
shall be substantially in the form specified in the related Supplement and
shall bear, upon its face, the designation for such Series to which it belongs,
as selected by the Transferor. Except as specified in any Supplement for a
related Series, all Investor Certificates of any Series shall rank pari passu
and be equally and ratably entitled as provided herein to the benefits hereof
(except that the Credit Enhancement provided for any Series shall not be
available for any other Series) without preference, priority or distinction on
account of the actual time or times of authentication and delivery, all in
accordance with the terms and provisions of this Agreement and the related
Supplement.
(b) The Holder of the Transferor Certificate may tender
the Transferor Certificate to the Trustee in exchange for (i) one or more newly
issued Series of Investor Certificates or in connection with a Companion
Series, interests in such Series and (ii) a reissued Transferor Certificate
(any such tender, a "Transferor Exchange"). In addition, to the extent
permitted for any Series of Investor Certificates as specified in the related
Supplement, the Investor Certificateholders of such Series may tender their
Investor Certificates and the Holder of the Transferor Certificate may tender
the Transferor Certificate to the Trustee pursuant to the terms and conditions
set forth in such Supplement in exchange for (i) one or more newly issued
Series of Investor Certificates and (ii) a reissued Transferor Certificate (an
"Investor Exchange"). The Transferor Exchange and Investor Exchange are
referred to collectively herein as an "Exchange." The Holder of the Transferor
Certificate may perform an Exchange by notifying the Trustee, in writing at
least three days in advance (an "Exchange Notice") of the date upon which the
Exchange is to occur (an "Exchange Date"). Any Exchange Notice shall state the
designation of any Series (and Class thereof, if applicable) to be issued on
the Exchange Date and, with respect to each such Series: (a) its Initial
Investor Interest (or the method for calculating such Initial Investor
Interest) (b) its Certificate Rate (or the method for allocating interest
payments or other cash flows to such Series), if any, and (c) the Credit
Enhancement Provider, if any, with respect to such Series. On the Exchange
Date, the Trustee shall authenticate and deliver any such Series of Investor
Certificates only upon delivery to it of the following: (a) a Supplement
satisfying the criteria set forth in subsection 6.9(c) executed by the
Transferor and specifying the Principal Terms of such Series, (b) the
applicable Credit Enhancement, if any, (c) the agreement, if any, pursuant to
which the Credit Enhancement Provider agrees to provide the Credit Enhancement,
if any, (d) an Opinion of Counsel to the effect that, unless otherwise stated
in the related Supplement, the newly issued Series or Class of Investor
Certificates will be treated as debt secured by the Receivables for United
States federal income and Delaware and New York state income and corporate
franchise tax purposes, (e) a Tax Opinion, (f) written confirmation from each
Rating Agency that the Exchange will satisfy the Rating Agency Condition, (g)
an Officer's Certificate signed by a Vice President (or any more senior
officer) of the Transferor, that on the Exchange Date (i) the Transferor, after
giving effect to the Exchange, would not be required to add Additional Accounts
pursuant to subsection 2.6(a), and (ii) after giving effect to such Exchange,
the Transferor Interest would be at least equal to the Minimum Transferor
Interest and (h) the existing Transferor Certificate or applicable Investor
Certificates, as the case may be. Upon satisfaction of such conditions, the
Trustee shall cancel the existing Transferor Certificate or applicable Investor
Certificates, as the case may be, and issue, as provided above, such Series of
Investor Certificates and a new Transferor Certificate, dated the Exchange
Date. There is no limit to the number of Exchanges that may be performed under
the Agreement.
(c) In conjunction with an Exchange, the parties hereto
shall execute a Supplement, which shall specify the relevant terms with respect
to any newly issued Series of Investor Certificates, which may include without
limitation: (i) its name or designation, (ii) an Initial Investor Interest or
the method of calculating the Initial Investor Interest, (iii) the method of
determining any adjusted Investor Interest, if applicable, (iv) the Certificate
Rate (or formula for the determination thereof), (v) the Closing Date, (vi)
each Rating Agency rating such Series, (vi) the name of the Clearing Agency, if
any, (vii) the rights of the Holder of the Transferor Certificate that have
been transferred to the Holders of such Series pursuant to such Exchange
(including any rights to allocations of Collections of Finance Charge
Receivables and Principal Receivables), (ix) the interest payment date or dates
and the date or dates from which interest shall accrue, (x) the periods during
which or dates on which principal will be paid or accrued, (xi) the method of
allocating Collections with respect to Principal Receivables for such Series
and, if applicable, with respect to other Series and the method by which the
principal amount of Investor Certificates of such Series shall amortize or
accrete and the method for allocating Collections with respect to Finance
Charge Receivables and Receivables in Defaulted Accounts, (xii) any other
Collections with respect to Receivables or other amounts available to be paid
with respect to such Series, (xii) the names of any accounts to be used by such
Series and the terms governing the operation of any such accounts and use of
moneys therein, (xiv) the Series Servicing Fee and the Series Servicing Fee
Percentage, (xv) the Minimum Transferor Interest and the Series Termination
Date, (xvi) the terms of any Credit Enhancement with respect to such Series,
and the Credit Enhancement Provider, if applicable, (xvii) the base rate
applicable to such Series, (xviii) the terms on which the Certificates of such
Series may be repurchased or remarketed to other investors, (xix) any deposit
into any account provided for such Series, (xx) the number of Classes of such
Series, and if more than one Class, the rights and priorities of each such
Class, (xxi) whether Interchange or other fees will be included in the funds
available to be paid for such Series, (xxii) the priority of any Series with
respect to any other Series, (xxiii) the rights, if any, of the holders of the
Transferor Certificate that have been transferred to the holders of such
Series, (xxiv) the Pool Factor, (xxv) the Minimum Aggregate Principal
Receivables, (xxvi) whether such Series will be part of a Group, (xxvii)
whether such Series will or may be a Companion Series and the Series with which
it will be paired, if applicable and (xxviii) any other relevant terms of such
Series (including whether or not such Series will be pledged as collateral for
an issuance of any other securities, including commercial paper) (all such
terms, the "Principal Terms" of such Series). The terms of such Supplement may
modify or amend the terms of this Agreement solely as applied to such new
Series. If on the date of the issuance of such Series there is issued and
outstanding one or more Series of Investor Certificates and no Series of
Investor Certificates is currently rated by a Rating Agency, then as a
condition to such Exchange a nationally recognized investment banking firm or
commercial bank shall also deliver to the Trustee an Officer's certificate
stating, in substance, that the Exchange will not have an adverse effect on the
timing or distribution of payments to such other Series of Investor
Certificates then issued and outstanding.
Section 6.10 Book-Entry Certificates. Unless otherwise
provided in any related Supplement, the Investor Certificates, upon original
issuance, shall be issued in the form of typewritten Certificates representing
the Book-Entry Certificates, to be delivered to the depository specified in
such Supplement (the "Depository") which shall be the Clearing Agency or
Foreign Clearing Agency, by or on behalf of such Series. The Investor
Certificates of each Series shall, unless otherwise provided in the related
Supplement, initially be registered on the Certificate Register in the name of
the nominee of the Clearing Agency or Foreign Clearing Agency. No Certificate
Owner will receive a definitive certificate representing such Certificate
Owner's interest in the related Series of Investor Certificates, except as
provided in Section 6.12. Unless and until definitive, fully registered
Investor Certificates of any Series ("Definitive Certificates") have been
issued to Certificate Owners pursuant to Section 6.12;
(i) the provisions of this Section 6.10 shall be
in full force and effect with respect to each such Series;
(ii) the Transferor, the Servicer, the Paying
Agent, the Transfer Agent and Registrar and the Trustee may deal with
the Clearing Agency and the Clearing Agency Participants for all
purposes (including the making of distributions on the Investor
Certificates of each such Series) as the authorized representatives of
the Certificate Owners;
(iii) to the extent that the provisions of this
Section 6.10 conflict with any other provisions of this Agreement, the
provisions of this Section 6.10 shall control with respect to each such
Series; and
(iv) the rights of Certificate Owners of each
such Series shall be exercised only through the Clearing Agency or
Foreign Clearing Agency and the applicable Clearing Agency Participants
and shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency or Foreign Clearing
Agency and/or the Clearing Agency Participants. Pursuant to the
Depository Agreement applicable to a Series, unless and until
Definitive Certificates of such Series are issued pursuant to Section
6.12, the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit distributions
of principal and interest on the Investor Certificates to such Clearing
Agency Participants.
Section 6.11 Notices to Clearing Agency. Whenever notice or
other communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to Certificate
Owners pursuant to Section 6.12, the Trustee shall give all such notices and
communications specified herein to be given to Holders of the Investor
Certificates to the Clearing Agency or Foreign Clearing Agency for distribution
to Holders of Investor Certificates.
Section 6.12 Definitive Certificates. If (i) (A) the
Transferor advises the Trustee in writing that the Clearing Agency or Foreign
Clearing Agency is no longer willing or able to discharge properly its
responsibilities under the applicable Depository Agreement, and (B) the Trustee
or the Transferor is unable to locate a qualified successor, (ii) the
Transferor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or Foreign Clearing
Agency with respect to any Series of Certificates or (iii) after the occurrence
of a Servicer Default, Certificate Owners of a Series representing beneficial
interests aggregating not less than 50% of the Investor Interest of such Series
advise the Trustee and the applicable Clearing Agency or Foreign Clearing
Agency through the applicable Clearing Agency Participants in writing that the
continuation of a book-entry system through the applicable Clearing Agency or
Foreign Clearing Agency is no longer in the best interests of the Certificate
Owners, the Trustee shall notify all Certificate Owners of such Series, through
the applicable Clearing Agency Participants, of the occurrence of any such
event and of the availability of Definitive Certificates to Certificate Owners
of such Series requesting the same. Upon surrender to the Trustee of the
Investor Certificates of such Series by the applicable Clearing Agency or
Foreign Clearing Agency, accompanied by registration instructions from the
applicable Clearing Agency or Foreign Clearing Agency for registration, the
Trustee shall issue the Definitive Certificates of such Series. Neither the
Transferor nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Certificates of such
Series all references herein to obligations imposed upon or to be performed by
the applicable Clearing Agency or Foreign Clearing Agency shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates, and the Trustee shall recognize the
Holders of the Definitive Certificates of such Series as Certificateholders of
such Series hereunder.
Section 6.13 Global Certificate. If specified in the related
Supplement for any Series, the Investor Certificates may be initially issued in
the form of a single temporary Global Certificate (the "Global Certificate") in
bearer form, without interest coupons, in the denomination of the Initial
Investor Interest and substantially in the form attached to the related
Supplement. Unless otherwise specified in the related Supplement, the
provisions of this Section 6.13 shall apply to such Global Certificate. The
Global Certificate will be authenticated by the Trustee upon the same
conditions, in substantially the same manner and with the same effect as the
Definitive Certificates. The Global Certificate may be exchanged in the manner
described in the related Supplement for Registered or Bearer Certificates in
definitive form.
Section 6.14 Meetings of Certificateholders. To the extent
provided by the Supplement for any Series issued in whole or in part in Bearer
Certificates, the Servicer or the Trustee may at any time call a meeting of the
Certificateholders of such Series, to be held at such time and at such place as
the Servicer or the Trustee, as the case may be, shall determine, for the
purpose of approving a modification of or amendment to, or obtaining a waiver
of, any covenant or condition set forth in this Agreement with respect to such
Series or in the Certificates of such Series, subject to Section 13.1 of the
Agreement.
[End of Article VI]
ARTICLE VII
OTHER MATTERS RELATING
TO THE TRANSFEROR
Section 7.1 Liability of the Transferor. The Transferor shall
be liable in accordance herewith to the extent of the obligations specifically
undertaken by the Transferor.
Section 7.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Transferor.
(a) The Transferor shall not consolidate with or merge
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) (A) the Transferor is the surviving entity
or (B) if the Transferor is not the surviving entity, the corporation
formed by such consolidation or into which the Transferor is merged or
the Person which acquires by conveyance or transfer the properties and
assets of the Transferor substantially as an entirety shall be
organized and existing under the laws of the United States of America
or any State or the District of Columbia, and shall be a national
banking association, state banking corporation or other entity which is
not subject to the bankruptcy laws of the United States of America and
shall expressly assume, by an agreement supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
performance of every covenant and obligation of the Transferor, as
applicable hereunder and shall benefit from all the rights granted to
the Transferor, as applicable hereunder. To the extent that any right,
covenant or obligation of the Transferor, as applicable hereunder, is
inapplicable to the successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit from such right, as
would apply, to the extent practicable, to such successor entity. In
furtherance hereof, in applying this Section 7.2 to a successor entity,
Section 9.2 hereof shall be applied by reference to events of
involuntary liquidation, receivership or conservatorship applicable to
such successor entity as shall be set forth in the Officer's
Certificate described in subsection 7.2(a)(ii);
(ii) the Transferor shall have delivered to the
Trustee an Officer's Certificate signed by a Vice President (or any
more senior officer) of the Transferor stating that such consolidation,
merger, conveyance or transfer and such supplemental agreement comply
with this Section 7.2 and that all conditions precedent herein provided
for relating to such transaction have been complied with and an Opinion
of Counsel that such supplemental agreement is legal, valid and
binding; and
(iii) the Transferor shall have delivered notice
to the Rating Agency of such consolidation, merger, conveyance or
transfer.
(b) The obligations of the Transferor hereunder shall not
be assignable nor shall any Person succeed to the obligations of the Transferor
hereunder (i) except for mergers, consolidations, assumptions or transfers in
accordance with the provisions of the foregoing paragraph or (ii) unless the
assignee with respect to such obligations shall be organized and existing under
the laws of the United States of America or any State or the District of
Columbia, and shall be a national banking association, state banking
corporation or other entity which is not subject to the bankruptcy laws of the
United States of America and shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the performance of every covenant and obligation
of the Transferor, as applicable hereunder and shall benefit from all the
rights granted to the Transferor, as applicable hereunder. To the extent that
any right, covenant or obligation of the Transferor, as applicable hereunder,
is inapplicable to the assignee, such assignee shall be subject to such
covenant or obligation, or benefit from such right, as would apply, to the
extent practicable, to such assignee.
Section 7.3 Limitation of Liability. The directors, officers,
employees or agents of the Transferor shall not be under any liability to the
Trust, the Trustee, the Certificateholders, any Credit Enhancement Provider or
any other Person hereunder or pursuant to any document delivered hereunder, it
being expressly understood that all such liability is expressly waived and
released as a condition of, and as consideration for, the execution of this
Agreement and any Supplement and the issuance of the Certificates; provided,
however, that this provision shall not protect the officers, directors,
employees, or agents of the Transferor against any liability which would
otherwise be imposed by reason of willful misfeasance or gross negligence in
the performance of duties or by reason of reckless disregard of obligations and
duties hereunder. Except as provided in Section 7.4, the Transferor shall not
be under any liability to the Trust, the Trustee, the Certificateholders, any
Credit Enhancement Provider or any other Person for any action taken or for
refraining from the taking of any action in its capacity as Transferor pursuant
to this Agreement or any Supplement whether arising from express or implied
duties under this Agreement or any Supplement; provided, however, that this
provision shall not protect the Transferor against any liability which would
otherwise be imposed by reason of willful misfeasance or gross negligence in
the performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Transferor and any director, officer, employee or agent
may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
Section 7.4 Liabilities. Notwithstanding Section 7.3 (and
notwithstanding Sections 3.2, 8.3, 8.4 and 11.11), or any other provision
herein, the Transferor by entering into this Agreement, and any holder of an
interest in the Transferor Certificate by its acceptance thereof, agree to be
liable, directly to any creditor or claimant for the entire amount of any
liabilities, including without limitation, any taxes imposed on the Trust,
losses, claims or damages (other than those that would be incurred by an
Investor Certificateholder or a Credit Enhancement Provider, if any, if the
Investor Certificates or Collateral Interest, as the case may be, were notes
secured by the Receivables, for example, as a result of the performance of the
Receivables, market fluctuations, a shortfall or failure to make payment under
any Credit Enhancement or other similar market or investment risks associated
with ownership of the Investor Certificates) arising out of or based on the
arrangement created by this Agreement (to the extent that, if the Trust assets
at the time the claim is made were used to pay in full all outstanding
Certificates of all Series, the Trust assets that would remain after the
Investor Certificateholders and Credit Enhancement Providers, if any, were paid
in full would be insufficient to pay any such losses, claims, damages or
liabilities) as though this Agreement created a partnership under the New York
Revised Limited Partnership Act in which the Transferor and such holder of an
interest in the Transferor Certificate were the general partners of such
partnership. The rights created by this Section 7.4 shall run directly to and
be enforceable by the injured party subject to the limitations hereof. To the
extent provided in Section 8.4, the Servicer will (from its own assets and not
from the assets of the Trust) indemnify and hold harmless the Transferor and
each holder of an interest in the Transferor Certificate against and from
certain losses, claims, damages and liabilities of the Transferor as described
in this Section arising from the actions or omissions of the Servicer.
[End Of Article VII]
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.1 Liability of the Servicer. The Servicer shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer in such capacity herein.
Section 8.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. The Servicer shall not consolidate with or merge
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) (A) the Servicer is the surviving entity or
(B) if the Servicer is not the surviving entity, the corporation formed
by such consolidation or into which the Servicer is merged or the
Person which acquires by conveyance or transfer the properties and
assets of the Servicer substantially as an entirety shall be a
corporation organized and existing under the laws of the United States
of America or any State or the District of Columbia, and shall be a
state or national banking association or other entity which is not
subject to the bankruptcy laws of the United States of America and
shall expressly assume, by an agreement supplemental hereto, executed
and delivered to the Trustee in form satisfactory to the Trustee, the
performance of every covenant and obligation of the Servicer hereunder
(to the extent that any right, covenant or obligation of the Servicer,
as applicable hereunder, is inapplicable to the successor entity, such
successor entity shall be subject to such covenant or obligation, or
benefit from such right, as would apply, to the extent practicable, to
such successor entity);
(ii) the Servicer shall have delivered to the
Trustee an Officer's Certificate that such consolidation, merger,
conveyance or transfer and such supplemental agreement comply with this
Section 8.2 and that all conditions precedent herein provided for
relating to such transaction have been complied with and an Opinion of
Counsel that such supplemental agreement is legal, valid and binding
with respect to the Servicer; and
(iii) the Servicer shall have delivered notice to
the Rating Agency of such consolidation, merger, conveyance or
transfer.
Section 8.3 Limitation of Liability of the Servicer and
Others. The directors, officers, employees or agents of the Servicer shall not
be under any liability to the Trust, the Trustee, the Certificateholders, any
Credit Enhancement Provider or any other Person hereunder or pursuant to any
document delivered hereunder, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement and any Supplement and the
issuance of the Certificates; provided, however, that this provision shall not
protect the directors, officers, employees and agents of the Servicer against
any liability which would otherwise be imposed by reason of willful misfeasance
or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. Except as provided in Section
8.4 with respect to the Trust and the Trustee, its officers, directors,
employees and agents, the Servicer shall not be under any liability to the
Trust, the Trustee, its officers, directors, employees and agents, the
Certificateholders or any other Person for any action taken or for refraining
from the taking of any action in its capacity as Servicer pursuant to this
Agreement or any Supplement; provided, however, that this provision shall not
protect the Servicer against any liability which would otherwise be imposed by
reason of willful misfeasance or gross negligence in the performance of duties
or by reason of its reckless disregard of its obligations and duties hereunder
or under any Supplement. The Servicer may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Receivables in accordance with this
Agreement which in its reasonable opinion may cause it to incur any expense or
liability.
Section 8.4 Servicer Indemnification of the Trust and the
Trustee. The Servicer shall indemnify and hold harmless the Trust and the
Trustee, its officers, directors, employees and agents, from and against any
reasonable loss, liability, expense, damage or injury suffered or sustained by
reason of any acts or omissions or alleged acts or omissions of the Servicer
with respect to activities of the Trust or the Trustee pursuant to this
Agreement or any Supplement, including, but not limited to any judgment, award,
settlement, reasonable attorneys' fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim; provided, however, that the Servicer shall not indemnify the Trustee if
such acts, omissions or alleged acts or omissions constitute or are caused by
fraud, negligence, bad faith or willful misconduct by the Trustee; provided,
further, that the Servicer shall not indemnify the Trust, the Investor
Certificateholders or the Certificate Owners for any liabilities, costs or
expenses of the Trust with respect to any action taken by the Trustee at the
request of the Investor Certificateholders; provided, further, that the
Servicer shall not indemnify the Trust, the Investor Certificateholders or the
Certificate owners as to any losses, claims or damages incurred by any of them
in their capacities as investors, including without limitation losses incurred
as a result of Defaulted Accounts or Receivables which are written off as
uncollectible; and provided, further, that the Servicer shall not indemnify the
Trust, the Investor Certificateholders or the Certificate Owners for any
liabilities, costs or expenses of the Trust, the Investor Certificateholders or
the Certificate Owners arising under any tax law, including without limitation,
any federal, state, local or foreign income or franchise taxes or any other tax
imposed on or measured by income (or any interest or penalties with respect
thereto or arising from a failure to comply therewith) required to be paid by
the Trust, the Investor Certificateholders or the Certificate Owners in
connection herewith to any taxing authority. Any such indemnification shall
not be payable from the assets of the Trust. The provisions of this indemnity
shall run directly to and be enforceable by an injured party subject to the
limitations hereof. The provisions of this Section 8.4 shall survive
termination of this Agreement and the resignation or removal of the Trustee.
Section 8.5 The Servicer Not to Resign. The Servicer shall
not resign from the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make the performance of its duties hereunder
permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced as to clause (i) above by an
Opinion of Counsel to such effect delivered to the Trustee. No such
resignation shall become effective until the Trustee or a Successor Servicer
shall have assumed the responsibilities and obligations of the Servicer in
accordance with Section 10.2 hereof. If the Trustee is unable within 120 days
of the date of such determination to appoint a Successor Servicer, the Trustee
shall serve as Successor Servicer hereunder.
Section 8.6 Access to Certain Documentation and Information
Regarding the Receivables. The Servicer shall provide to the Trustee access to
the documentation regarding the Accounts and the Receivables in such cases
where the Trustee is required in connection with the enforcement of the rights
of the Investor Certificateholders, or by applicable statutes or regulations to
review such documentation, such access being afforded without charge but only
(i) upon reasonable request, (ii) during normal business hours, (iii) subject
to the Servicer's normal security and confidentiality procedures and (iv) at
offices designated by the Servicer. Nothing in this Section 8.6 shall derogate
from the obligation of the Transferor, the Trustee or the Servicer to observe
any applicable law prohibiting disclosure of information regarding the Obligors
and the failure of the Servicer to provide access as provided in this Section
8.6 as a result of such obligations shall not constitute a breach of this
Section 8.6.
Section 8.7 Delegation of Duties. It is understood and agreed
by the parties hereto that the Servicer may delegate certain of its duties
hereunder to First Data Resources, Inc. ("FDR"), a credit card processor
located in Omaha, Nebraska. In the ordinary course of business, the Servicer
may at any time delegate any duties hereunder to any Person who agrees to
conduct such duties in accordance with the Credit Card Guidelines. Any such
delegations shall not relieve the Servicer of its liability and responsibility
with respect to such duties, and shall not constitute a resignation within the
meaning of Section 8.5 hereof. If any such delegation is to a party other than
FDR notification thereof shall be given to each Rating Agency.
Section 8.8 Examination of Records. The Servicer shall
clearly and unambiguously identify each Account (including any Additional
Account designated pursuant to Section 2.6) in its computer or other records to
reflect that the Receivables arising in such Account have been conveyed to the
Trust pursuant to this Agreement. The Servicer shall, prior to the sale or
transfer to a third party of any receivable held in its custody, examine its
computer and other records to determine that such receivable is not a
Receivable.
[End of Article VIII]
ARTICLE IX
PAY OUT EVENTS
Section 9.1 Pay Out Events. If any one of the following
events (each, a "Trust Pay Out Event") shall occur:
(a) (i) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Transferor in an
involuntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
which decree or order is not stayed, or any other similar relief shall
be granted under any applicable federal or state law, (ii) an
involuntary case is commenced against the Transferor under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect which remains undismissed, undischarged or unbonded for a
period of 60 days or (iii) the Transferor shall have a decree or an
order for relief entered with respect to it or commence a voluntary
case under the Bankruptcy Code or any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect;
(b) the Transferor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to all or substantially all of its property, or a decree
or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against the Transferor; or the Transferor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations; or the
Transferor shall become unable for any reason to transfer Receivables
to the Trust in accordance with the provisions of this Agreement; or
(c) the Trust shall become subject to regulation by the
Securities and Exchange Commission as an "investment company" within
the meaning of the Investment Company Act;
then a Pay Out Event with respect to all Series of Certificates shall occur
without any notice or other action on the part of the Trustee or the Investor
Certificateholders immediately upon the occurrence of such event.
Section 9.2 Additional Rights Upon the Occurrence of Certain
Events.
(a) If any event set forth in Section 9.1(a) or (b) shall
occur (any such event, an "Insolvency Event"), the Transferor shall on the day
of such Insolvency Event (the "Appointment Day") immediately cease to transfer
Principal Receivables to the Trust and shall promptly give notice to the
Trustee of such Insolvency Event and the arrangement among the parties created
hereby shall be deemed to have been dissolved, subject to the liquidation and
winding up procedures described below. Notwithstanding any cessation of the
transfer to the Trust of additional Principal Receivables, Finance Charge
Receivables, whenever created, accrued in respect of Principal Receivables
which have been transferred to the Trust shall continue to be a part of the
Trust, and Collections with respect thereto shall continue to be allocated and
paid in accordance with Article IV. Within 15 days of the Appointment Day, the
Trustee shall (i) publish a notice in an Authorized Newspaper that an
Insolvency Event has occurred and that the Trustee intends to sell, dispose of
or otherwise liquidate the Receivables in a commercially reasonable manner and
(ii) send written notice to the Investor Certificateholders describing the
provisions of this Section 9.2 and requesting instructions from such Holders.
Unless within 75 days from the day notice pursuant to clause (i) above is first
published, the Trustee shall have received written instructions of Holders of
Investor Certificates evidencing more than 50% of the Investor Interest of each
Series issued and outstanding (or, if any such Series has two or more Classes,
each Class) to the effect that such Certificateholders disapprove of the
liquidation of the Receivables. If such vote disapproving of liquidation of
the Receivables has not been obtained, the Trustee shall use its best efforts
to sell, dispose of or otherwise liquidate the Receivables in a commercially
reasonable manner and on commercially reasonable terms, which shall include the
solicitation of competitive bids. The Trustee may obtain a prior determination
from any such conservator, receiver or liquidator that the terms and manner of
any proposed sale, disposition or liquidation are commercially reasonable. The
provisions of Sections 9.1 and 9.2 shall not be deemed to be mutually
exclusive.
(b) The proceeds from the sale, disposition or liquidation
of the Receivables pursuant to subsection (a) above shall be treated as
Collections on the Receivables and shall be allocated and deposited in
accordance with the provisions of Article IV; provided, that the Trustee shall
determine conclusively in its sole discretion the amount of such proceeds which
are allocable to Finance Charge Receivables and the amount of such proceeds
which are allocable to Principal Receivables. On the day following the last
Distribution Date in the Monthly Period during which such proceeds are
distributed to the Investor Certificateholders of each Series, the Trust shall
terminate.
(c) The Trustee may appoint an agent or agents to assist
with its responsibilities pursuant to this Article IX with respect to
competitive bids.
[End of Article IX]
ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults. If any one of the following
events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment,
transfer or deposit or to give instructions or notice to the Trustee
pursuant to Article IV or to instruct the Trustee to make any required
drawing, withdrawal, or payment under any Credit Enhancement on or
before the date occurring ten Business Days after the date such
payment, transfer, deposit withdrawal or drawing or such instruction or
notice is required to be made or given, as the case may be, under the
terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or
perform in any respect any other covenants or agreements of the
Servicer set forth in this Agreement, which has a material adverse
effect on the Investor Certificateholders of any Series and which
continues unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Trustee, or to the
Servicer and the Trustee by the Holders of Investor Certificates
evidencing Undivided Interests aggregating not less than 50% of the
Investor Interest of any Series adversely affected thereby and
continues to materially adversely affect such Investor
Certificateholders for such period; or the Servicer shall delegate its
duties under this Agreement, except as permitted by Section 8.7;
(c) any representation, warranty or certification made by
the Servicer in this Agreement or in any certificate delivered pursuant
to this Agreement shall prove to have been incorrect when made, which
has a material adverse effect an the Investor Certificateholders of any
Series and which continues to be incorrect in any material respect for
a period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Servicer by the Trustee, or to the Servicer and the Trustee by the
Holders of Investor Certificates evidencing Undivided Interests
aggregating not less than 50% of the Investor Interest of any Series
adversely affected thereby and continues to materially adversely affect
such Investor Certificateholders for such period; or
(d) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to the Servicer or of or relating to all or
substantially all of its property, or a decree or order of a court or
agency or supervisory authority having jurisdiction in the premises for
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer, and such decree
or order shall have remained in force undischarged or unstayed for a
period of 60 days; or the Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
any assignment for the benefit of its creditors or voluntarily suspend
payment of its obligations; then, so long as such Servicer Default
shall not have been remedied, either the Trustee, or the Holders of
Investor Certificates evidencing Undivided Interests aggregating more
than 50% of the Aggregate Investor Interest, by notice then given in
writing to the Servicer (and to the Trustee if given by the Investor
Certificateholders) (a "Termination Notice"), may terminate all of the
rights and obligations of the Servicer as Servicer under this
Agreement. After receipt by the Servicer of such Termination Notice,
and on the date that a Successor Servicer shall have been appointed by
the Trustee pursuant to Section 10.2, all authority and power of the
Servicer under this Agreement shall pass to and be vested in a
Successor Servicer; and, without limitation, the Trustee is hereby
authorized and empowered (upon the failure of the Servicer to
cooperate) to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments upon
the failure of the Servicer to execute or deliver such documents or
instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer of
servicing rights and obligations. The Servicer agrees to cooperate
with the Trustee and such Successor Servicer in effecting the
termination of the responsibilities and rights of the Servicer to
conduct servicing hereunder including, without limitation, the transfer
to such Successor Servicer of all authority of the Servicer to service
the Receivables provided for under this Agreement, including, without
limitation, all authority over all Collections which shall on the date
of transfer be held by the Servicer for deposit, or which have been
deposited by the Servicer, in the Collection Account, the Finance
Charge Account, the Principal Account, the Excess Funding Account and
any Series Account, or which shall thereafter be received with respect
to the Receivables, and in assisting the Successor Servicer and in
enforcing all rights to Insurance Proceeds and Interchange (if any)
applicable to the Trust. The Servicer shall promptly transfer its
electronic records or electronic copies thereof relating to the
Receivables to the Successor Servicer in such electronic form as the
Successor Servicer may reasonably request and shall promptly transfer
to the Successor Servicer all other records, correspondence and
documents necessary for the continued servicing of the Receivables in
the manner and at such times as the Successor Servicer shall reasonably
request. To the extent that compliance with this Section 10.1 shall
require the Servicer to disclose to the Successor Servicer information
of any kind which the Servicer reasonably deems to be confidential, the
Successor Servicer shall be required to enter into each customary
licensing and confidentiality agreements as the Servicer shall deem
necessary to protect its interests. The Servicer shall, on the date of
any servicing transfer, transfer all of its rights and obligations
under the Credit Enhancement with respect to any Series to the
Successor Servicer.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in subsection 10.1(a) for a period of 10
Business Days or in subsection 10.1(b) or (c) for a period of
60 Business Days, shall not constitute a Servicer Default if such delay or
failure could not be prevented by the exercise of reasonable diligence by the
Servicer and such delay or failure was caused by an act of God or the public
enemy, acts of declared or undeclared war, public disorder, rebellion, riot or
sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes,
earthquakes, nuclear disasters or meltdowns, floods, power outages or similar
causes. The preceding sentence shall not relieve the Servicer from using its
best efforts to perform its obligations in a timely manner in accordance with
the terms of this Agreement and the Servicer shall provide the Trustee, any
Credit Enhancement Provider, the Transferor and the Holders of Investor
Certificates with an Officer's Certificate giving prompt notice of such failure
or delay by it, together with a description of the cause of such failure or
delay and its efforts so to perform its obligations.
Section 10.2 Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a
Termination Notice pursuant to Section 10.1, the Servicer shall continue to
perform all servicing functions under this Agreement until the date specified
in the Termination Notice or otherwise specified by the Trustee in writing or,
if no such date is specified in such Termination Notice, or otherwise specified
by the Trustee, until a date mutually agreed upon by the Servicer and Trustee.
The Trustee shall notify each Rating Agency of such removal of the Servicer.
The Trustee shall, as promptly as possible after the giving of a Termination
Notice appoint a successor Servicer (the "Successor Servicer"), and such
Successor Servicer shall accept its appointment by a written assumption in a
form acceptable to the Trustee. The Trustee may obtain bids from any potential
successor Servicer. If the Trustee is unable to obtain any bids from any
potential successor Servicer and the Servicer delivers an Officer's Certificate
to the effect that the Servicer cannot in good faith cure the Servicer Default
which gave rise to a transfer of servicing, and if the Trustee is legally
unable to act as Successor Servicer, then the Trustee shall notify each Credit
Enhancement Provider of the proposed sale of the Receivables and shall provide
each such Credit Enhancement Provider an opportunity to bid on the Receivables
and shall offer the Transferor the right of first refusal to purchase the
Receivables on terms equivalent to the best purchase offer as determined by the
Trustee, but in no event less than an amount equal to the Aggregate Investor
Interest on the date of such purchase plus all interest accrued but unpaid on
all of the outstanding Investor Certificates at the applicable Certificate Rate
through the date of such purchase. The proceeds of such sale shall be
deposited in the Distribution Account or any Series Account, as provided in the
related Supplement, for distribution to the Investor Certificateholders of each
outstanding Series pursuant to Section 12.3 of the Agreement. In the event
that a Successor Servicer has not been appointed and has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the
Trustee without further action shall automatically be appointed the Successor
Servicer. Notwithstanding the above, the Trustee shall, if it is legally
unable so to act, petition a court of competent jurisdiction to appoint any
established financial institution having, in the case of an entity that is
subject to risk-based capital adequacy requirements, risk-based capital of at
least $50,000,000 or, in the case of an entity that is not subject to
risk-based capital requirements, having a net worth of not less than
$50,000,000 and whose regular business includes the servicing of VISA or
MasterCard credit card receivables as the Successor Servicer hereunder.
(b) Upon its appointment, the Successor Servicer shall be
the successor in all respects to the Servicer with respect to servicing
functions under this Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof, and all references in this
Agreement to the Servicer shall be deemed to refer to the Successor Servicer.
Any Successor Servicer, by its acceptance of its appointment, will
automatically agree to be bound by the terms and provisions of each Credit
Enhancement.
(c) In connection with such appointment and assumption,
the Trustee shall be entitled to such compensation, or may make such
arrangements for the compensation of the Successor Servicer out of Collections,
as it and such Successor Servicer shall agree; provided, however, that no such
compensation shall be in excess of the Servicing Fee permitted to be paid to
the Servicer pursuant to Section 3.2. The Transferor agrees that if the
Servicer is terminated hereunder, it will agree to deposit a portion of the
Collections in respect of Finance Charge Receivables that it is entitled to
receive pursuant to Article IV to pay its share of the compensation of the
Successor Servicer.
(d) All authority and power granted to the Successor
Servicer under this Agreement shall automatically cease and terminate upon
termination of the Trust pursuant to Section 12.1 and shall pass to and be
vested in the Transferor and, without limitation, the Transferor is hereby
authorized and empowered to execute and deliver, on behalf of the Successor
Servicer, as attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such transfer of servicing rights. The
Successor Servicer agrees to cooperate with the Transferor in effecting the
termination of the responsibilities and rights of the Successor Servicer to
conduct servicing on the Receivables. The Successor Servicer shall transfer
its electronic records relating to the Receivables to the Transferor in such
electronic form as the Transferor may reasonably request and shall transfer all
other records, correspondence and documents to the Transferor in the manner and
at such times as the Transferor shall reasonably request. To the extent that
compliance with this Section 10.2 shall require the Successor Servicer to
disclose to the Transferor information of any kind which the Successor Servicer
deems to be confidential, the Transferor shall be required to enter into such
customary licensing and confidentiality agreements as the Successor Servicer
shall deem necessary to protect its interests.
Section 10.3 Notification to Certificateholders. Within two
Business Days after the Servicer becomes aware of any Servicer Default, the
Servicer shall give written notice thereof to the Trustee and any Credit
Enhancement Provider and the Trustee shall give notice to the Investor
Certificateholders at their respective addresses appearing in the Certificate
Register. Upon any termination or appointment of a Successor Servicer pursuant
to this Article X, the Trustee shall give prompt written notice thereof to
Investor Certificateholders at their respective addresses appearing in the
Certificate Register.
Section 10.4 Waiver of Past Defaults. The Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 66-2/3%
of the Investor Interest of each Series adversely affected by any default by
the Services or Transferor may, on behalf of all Certificateholders of such
Series, waive any default by the Servicer or Transferor in the performance of
its obligations hereunder and its consequences, except a default in the failure
to make any required deposits or payments of interest or principal relating to
such Series pursuant to Article IV which default does not result from the
failure of the Paying Agent to perform its obligations to make any required
deposits or payments of interest and principal in accordance with Article IV.
Upon any such waiver of a past default, such default shall cease to exist, and
any default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
[End of Article X]
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee.
(a) The Trustee, prior to the occurrence of any Servicer
Default and after the curing of all Servicer Defaults which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If a Responsible Officer has received written notice
that a Servicer Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they substantially conform to the requirements of this
Agreement.
(c) Subject to subsection 11.1(a), no provision of this
Agreement shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act or its own misconduct;
provided, however, that:
(i) the Trustee shall not be personally liable
for an error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be personally liable
with respect to any action taken, suffered or omitted to be taken by it
in good faith in accordance with the direction of the Holders of
Investor Certificates evidencing Undivided Interests aggregating more
than 50% of the Investor Interest of any Series relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee in relation to such Series, under this Agreement; and
(iii) the Trustee shall not be charged with
knowledge of any failure by the Servicer referred to in clauses (a) and
(b) of Section 10.1 unless a Responsible Officer of the Trustee obtains
actual knowledge of such failure or the Trustee receives written notice
of such failure from the Servicer or any Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than
10% of the Investor Interest of any Series adversely affected thereby.
(d) The Trustee shall not be required to expend or risk
its own funds or otherwise incur financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it, and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Servicer under this Agreement except during
such time, if any, as the Trustee shall be the successor to, and be vested with
the rights, duties, powers and privileges of, the Servicer in accordance with
the terms of this Agreement.
(e) Except for actions expressly authorized by this
Agreement, the Trustee shall take no action reasonably likely to impair the
interests of the Trust in any Receivable now existing or hereafter created or
to impair the value of any Receivable now existing or hereafter created.
(f) Except as provided in this subsection 11.1(f), the
Trustee shall have no power to vary the corpus of the Trust including, without
limitation, the power to (i) accept any substitute obligation for a Receivable
initially assigned to the Trust under Section 2.1 or 2.6 hereof, (ii) add any
other investment, obligation or security to the Trust, except for an addition
permitted under Section 2.6 or (iii) withdraw from the Trust any Receivables,
except for a withdrawal permitted under Sections 2.7, 9.2, 10.2, 12.1 or 12.2
or subsections 2.4(d), 2.4(e) or Article IV.
(g) In the event that the Paying Agent or the Transfer
Agent and Registrar shall fail to perform any obligation, duty or agreement in
the manner or on the day required to be performed by the Paying Agent or the
Transfer Agent and Registrar, as the case may be, under this Agreement, the
Trustee shall be obligated promptly to perform such obligation, duty or
agreement in the manner so required.
(h) If the Transferor has agreed to transfer any of its
credit card receivables (other than the Receivables) to another Person, upon
the written request of the Transferor, the Trustee will enter into such
intercreditor agreements with the transferee of such receivables as are
customary and necessary to identify separately the rights, if any, of the Trust
and such other Person in the Transferor's credit card receivables; provided,
however that the Trustee shall not be required to enter into any intercreditor
agreement which could adversely affect the interests of the Certificateholders
and, upon the request of the Trustee, the Transferor will deliver an Opinion of
Counsel on any matters relating to such intercreditor agreement, reasonably
requested by the Trustee.
Section 11.2 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 11.1:
(a) the Trustee may rely on and shall be protected in
acting on, or in refraining from acting in accord with, any assignment
of Receivables in Additional Accounts, the initial report, the monthly
Servicer's certificate, the annual Servicer's certificate, the monthly
payment instructions and notification to the Trustee, the monthly
Certificateholder's statement, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented to it pursuant to this
Agreement by the proper party or parties;
(b) the Trustee may consult with counsel of its selection,
and any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement or any
Credit Enhancement, or to institute, conduct or defend any litigation
hereunder or in relation hereto, at the request, order or direction of
any of the Certificateholders or any Credit Enhancement Provider,
pursuant to the provisions of this Agreement, unless such
Certificateholders or Credit Enhancement Provider shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligations, upon the occurrence of any Servicer Default (which has not
been cured), to exercise such of the rights and powers vested in it by
this Agreement and any Credit Enhancement, and to use the same degree
of care and skill in its exercise as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs;
(d) the Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement except to the extent of the
Trustee's negligence;
(e) the Trustee shall not be bound to make any
investigation into the facts of matters stated in any assignment of
Receivables in Additional Accounts, the initial report, the monthly
Servicer's certificate, the annual Servicer's certificate, the monthly
payment instructions and notification to the Trustee, the monthly
Certificateholder's statement, any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do
by Holders of Investor Certificates evidencing Undivided Interests
aggregating more than 50% of the Investor Interest of any Series which
could be adversely affected if the Trustee does not perform such acts;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly by or through
agents or attorneys or a custodian appointed with due care by it
hereunder; and
(g) except as may be required by subsection 11.1(a), or
otherwise expressly required herein or in any Supplement the Trustee
shall not be required to make any initial or periodic examination of
any documents or records related to the Receivables or the Accounts for
the purpose of establishing the presence or absence of defects, the
compliance by the Transferor with its representations and warranties or
for any other purpose.
Section 11.3 Trustee Not Liable for Recitals in Certificates.
The Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as set forth in Section 11.15, the
Trustee makes no representations as to the validity or sufficiency of this
Agreement or of the Certificates (other than the certificate of authentication
on the Certificates) or of any Receivable or related document. The Trustee
shall not be accountable for the use or application by the Transferor of any of
the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Transferor in respect of the Receivables
or deposited in or withdrawn from the Collection Account, the Principal Account
or the Finance Charge Account, or any Series Account by the Servicer.
Section 11.4 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Investor
Certificates with the same rights as it would have if it were not the Trustee.
Section 11.5 The Servicer to Pay Trustee's Fees and Expenses.
The Servicer covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to receive such reasonable compensation as shall
be agreed upon from time to time between the Servicer and the Trustee (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution
of the Trust hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee, and, subject to Section 8.4, the
Servicer will pay or reimburse the Trustee (without reimbursement from any
Investor Account, any Series Account or otherwise) upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement except any such
expense, disbursement or advance as may arise from its own negligence, bad
faith or wilful misfeasance and except as provided in the following sentence.
If the Trustee is appointed Successor Servicer pursuant to section 10.2, the
provisions of this Section 11.5 shall not apply to expenses, disbursements and
advances made or incurred by the Trustee in its capacity as Successor Servicer.
The obligations of the Servicer under this Section 11.5 shall
survive the termination of the Trust and the resignation or removal of the
Trustee.
Section 11.6 Eligibility Requirements for Trustee. The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or any state thereof
authorized under such laws to exercise corporate trust powers, having a
long-term unsecured debt rating of at least "Baa3" by Xxxxx'x and "BBB-" by
Standard & Poor's having, in the case of an entity that is subject to
risk-based capital adequacy requirements, risk-based capital of at least
$50,000,000 or, in the case of an entity that is not subject to risk-based
capital adequacy requirements, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purpose of this Section 11.6, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in the most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 11.6, the Trustee shall resign
immediately in the manner and with the effect specified in Section 11.7.
Section 11.7 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be discharged
from the Trust hereby created by giving written notice thereof to the Servicer.
Upon receiving such notice of resignation, the Servicer shall promptly appoint
a successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and
have accepted within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible
in accordance with the provisions of Section 11.6 hereof and shall fail to
resign after written request therefor by the Transferor, or if at any time the
Trustee shall be legally unable to act, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Transferor may, but shall not be required to, remove the
Trustee and promptly appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the provisions of this
Section 11.7 shall not become effective until acceptance of appointment by the
successor trustee as provided in Section 11.8 hereof and any liability of the
Trustee arising hereunder shall survive such appointment of a successor
trustee.
Section 11.8 Successor Trustee.
(a) Any successor trustee appointed as provided in Section
11.7 hereof shall execute, acknowledge and deliver to the Transferor and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as Trustee herein. The predecessor Trustee shall deliver to the
successor trustee all documents and statements held by it hereunder, and the
Transferor and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and certainly vesting and confirming in the successor trustee all such rights,
powers, duties and obligations.
(b) No successor trustee shall accept appointment as
provided in this Section 11.8 unless at the time of such acceptance such
successor trustee shall be eligible under the provisions of Section 11.6
hereof.
(c) Upon acceptance of appointment by a successor trustee
as provided in this Section 11.8, such successor trustee shall mail notice of
such succession hereunder to all Certificateholders at their addresses as shown
in the Certificate Register.
Section 11.9 Merger or Consolidation of Trustee. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 11.6 hereof, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
Section 11.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal requirements of
any jurisdiction in which any part of the Trust may at the time be located, the
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the trust, or any part thereof, and, subject
to the other provisions of this Section 11.10, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 11.6 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 11.8 hereof.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any laws
of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee hereunder;
and
(iii) the Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article XI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect to this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 11.11 Tax Returns. In the event the Trust shall be
required to file tax returns, the Trustee, as soon as practicable after it is
made aware of such requirement, shall prepare or cause to be prepared any tax
returns required to be filed by the Trust and, to the extent possible, shall
file such returns at least five days before such returns are due to be filed.
The Trustee is hereby authorized to sign any such return on behalf of the
Trust, in the event that the Trustee is determined to be the person required by
law to sign such return. The Servicer shall prepare or shall cause to be
prepared all tax information required by law to be distributed to
Certificateholders and shall deliver such information to the Trustee at least
five days prior to the date it is required by law to be distributed to
Certificateholders. The Servicer, upon request, in the event that the Trustee
is determined to be the person required by law to sign such return, will
furnish the Trustee with all such information known to the Servicer as may be
reasonably required in connection with the preparation of all tax returns of
the Trust. In no event shall the Trustee or the Servicer be liable for any
liabilities, costs or expenses of the Trust, the Investor Certificateholders or
the Certificate Owners arising under any tax law, including without limitation
federal, state, local or foreign income or excise taxes or any other tax
imposed on or measured by income (or any interest or penalty with respect
thereto or arising from a failure to comply therewith).
Section 11.12 Trustee may Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or any
Series of Certificates may be prosecuted and enforced by the Trustee without
the possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders any Series of Certificates, as their interests
may appear, in respect of which such judgment has been obtained.
Section 11.13 Suits for Enforcement. If a Servicer Default
shall occur and be continuing, the Trustee, in its discretion may, subject to
the provisions of Section 10.1, proceed to protect and enforce its rights and
the rights of the Holders of any Series of Certificates under this Agreement by
a suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement
or in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee or the Holders of any Series of Certificates.
Section 11.14 Rights of Certificateholders to Direct Trustee.
Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Aggregate Investor Interest (or, with respect to any
remedy, trust or power that does not relate to all Series, 50% of the Aggregate
Investor Interest of the Investor Certificates of all Series to which such
remedy, trust or power relates) shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided,
however, that, subject to Section 11.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer or Responsible Officers
of the Trustee, determine that the proceedings so directed would be illegal or
subject it to personal liability or be unduly prejudicial to the rights of
Certificateholders not parties to such direction; and provided further that
nothing in this Agreement shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction of such Holders of Investor Certificates.
Section 11.15 Representations and Warranties of Trustee. The
Trustee represents and warrants that:
(i) the Trustee is a banking corporation
organized, existing and authorized to engage in the business of banking
under the laws of the State of New York;
(ii) the Trustee has full power, authority and
right to execute, deliver and perform this Agreement, and has taken all
necessary action to authorize the execution, delivery and performance
by it of this Agreement; and
(iii) this Agreement has been duly executed and
delivered by the Trustee.
Section 11.16 Maintenance of Office or Agency. The Trustee
will maintain at its expense in the Borough of Manhattan, the City of New York
an office or offices, or agency or agencies, where notices and demands to or
upon the Trustee in respect of the Certificates and this Agreement may be
served. The Trustee initially designates its Corporate Trust Office as its
office for such purposes in New York. The Trustee will give prompt written
notice to the Servicer and to Certificateholders (or in the case of Holders of
Bearer Certificates, in the manner provided for in the related Supplement) of
any change in the location of the Certificate Register or any such office or
agency.
[End of Article XI]
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust.
(a) The respective obligations and responsibilities of the
Transferor, the Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make payments to Certificateholders as hereinafter
set forth) shall terminate, except with respect to the duties described in
Sections 8.4 and 11.5 and subsections 2.4(c) and 12.3(b), on the Trust
Termination Date; provided, however, that the Trust shall not terminate on the
date specified in clause (i) of the definition of "Trust Termination Date" if
each of the Servicer and the Holder of the Transferor Certificate notify the
Trustee in writing, not later than five Business Days preceding such date, that
they desire that the Trust not terminate on such date, which notice (such
notice, a "Trust Extension") shall specify the date on which the Trust shall
terminate (such date, the "Extended Trust Termination Date"); provided,
however, that the Extended Trust Termination Date shall be not later than the
day prior to the expiration of 21 years after the death of the last survivor of
the descendants living on the date of this Agreement of Xxxxxx X. Xxxxxxx, the
late ambassador of the United States of America to the Court of St. James's.
The Servicer and the Holder of the Transferor Certificate may, on any date
following the Trust Extension, so long as no Series of Certificates is
outstanding, deliver a notice in writing to the Trustee changing the Extended
Trust Termination Date.
(b) All principal or interest with respect to any Series
of Investor Certificates shall be due and payable no later than the Series
Termination Date with respect to such Series. Unless otherwise provided in a
Supplement, in the event that the Investor Interest of any Series of
Certificates is greater than zero on its Series Termination Date (after giving
effect to all transfers, withdrawals, deposits and drawings to occur on such
date and the payment of principal to be made on such Series on such date), the
Trustee will sell or cause to be sold, and pay the proceeds first, to all
Certificateholders of such Series pro rata in final payment of all principal of
and accrued interest on such Series of Certificates, and second, as provided in
the related Supplement, an amount of Principal Receivables and the related
Finance Charge Receivables (or interests therein) up to 110% of the sum of the
Investor Interest of such Series plus the Enhancement Invested Amount or the
Collateral Interest (if not included in the Investor Interest) of such Series,
if any, at the close of business on such date (but not more than an amount of
Principal Receivables and the related Finance Charge Receivables equal to the
sum of (1) the product of (A) the Transferor Percentage, (B) the aggregate
amount of Principal Receivables in the Trust and (C) a fraction the numerator
of which is the applicable Investor Percentage with respect to Finance Charge
Receivables and the denominator of which is the sum of all Investor Percentages
with respect to Finance Charge Receivables of all Series and (2) the Investor
Interest of such Series plus the Enhancement Invested Amount or the Collateral
Interest (if not included in the Investor Interest) of such Series). The
Trustee shall notify each Credit Enhancement Provider of the proposed sale of
such Receivables and shall provide each Credit Enhancement Provider an
opportunity to bid on such Receivables. The Transferor shall be permitted to
purchase such Receivables in such case and shall have a right of first refusal
with respect thereto. Any proceeds of such sale in excess of such principal
and interest paid shall be paid to the Holder of the Transferor Certificate.
Upon such Series Termination Date with respect to the applicable Series of
Certificates, final payment of all amounts allocable to any Investor
Certificates of such Series shall be made in the manner provided in Section
12.3.
Section 12.2 Optional Purchase. (a) If so provided in any
Supplement, the Transferor may, but shall not be obligated to, cause a final
distribution to be made in respect of the related Series of Certificates on a
Distribution Date specified in such Supplement by depositing into the
Distribution Account or the applicable Series Account, not later than the
Transfer Date preceding such Distribution Date, for application in accordance
with Section 12.3, the amount specified in such Supplement.
(b) The amount deposited pursuant to subsection 12.2(a)
shall be paid to the Investor Certificateholders of the related Series pursuant
to Section 12.3 on the related Distribution Date following the date of such
deposit. All Certificates of a Series which are purchased by the Transferor
pursuant to subsection 12.2(a) shall be delivered by the Transferor upon such
purchase to, and be canceled by, the Transfer Agent and Registrar and be
disposed of in a manner satisfactory to the Trustee and the Transferor. The
Investor Interest of each Series which is purchased by the Transferor pursuant
to subsection 12.2(a) shall, for the purposes of the definition of "Transferor
Interest," be deemed to be equal to zero on the Distribution Date following the
making of the deposit, and the Transferor Interest shall thereupon be deemed to
have been increased by the Investor Interest of such Series.
Section 12.3 Final Payment with Respect to any Series.
(a) Written notice of any termination, specifying the
Distribution Date upon which the Investor Certificateholders of any Series may
surrender their Certificates for payment of the final distribution with respect
to such Series and cancellation, shall be given by the Trustee to Investor
Certificateholders of such Series mailed not later than the fifth day of the
month of such final distribution (subject to at least two Business Days' prior
notice from the Servicer to the Trustee) (or in the manner provided by the
Supplement relating to such Series) specifying (i) the Distribution Date (which
shall be the Distribution Date in the month (x) in which the deposit is made
pursuant to subsection 2.4(e), 9.2(a), 10.2(a) or 12.2(a) of the Agreement or
such other section as may be specified in the related Supplement, or (y) in
which the related Series Termination Date occurs) upon which final payment of
such Investor Certificates will be made upon presentation and surrender of such
Investor Certificates at the office or offices therein designated (which, in
the case of Bearer Certificates, shall be outside the United States), (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only upon presentation and surrender of the Investor Certificates at the office
or offices therein specified. The Servicer's notice to the Trustee in
accordance with the preceding sentence shall be accompanied by an Officers'
Certificate setting forth the information specified in Article V of this
Agreement covering the period during the then current calendar year through the
date of such notice and setting forth the date of such final distribution. The
Trustee shall give such notice to the Transfer Agent and Registrar and the
Paying Agent at the time such notice is given to such Investor
Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant
to subsection 12.1(a) or the occurrence of the Series Termination Date with
respect to any Series, all funds then on deposit in the Finance Charge Account,
the Principal Account, the Excess Funding Account, the Distribution Account or
any Series Account applicable to the related Series shall continue to be held
in trust for the benefit of the Certificateholders of the related Series and
the Paying Agent or the Trustee shall pay such funds to the Certificateholders
of the related Series upon surrender of their Certificates (which surrenders
and payments, in the case of Bearer Certificates, shall be made only outside
the United States). In the event that all of the Investor Certificateholders
of any Series shall not surrender their Certificates for cancellation within
six months after the date specified in the above-mentioned written notice, the
Trustee shall give a second written notice (or, in the case of Bearer
Certificates, publication notice) to the remaining Investor Certificateholders
of such Series upon receipt of the appropriate records from the Transfer Agent
and Registrar to surrender their Certificates for cancellation and receive the
final distribution with respect thereto. If within one and one-half years
after the second notice with respect to a Series, all the Investor Certificates
of such Series shall not have been surrendered for cancellation, the Trustee
may take appropriate steps or may appoint an agent to take appropriate steps,
to contact the remaining Investor Certificateholders of such Series concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds in the Distribution Account or any Series Account held for the benefit of
such Investor Certificateholders. The Trustee and the Paying Agent shall pay
to the Transferor upon request any monies held by them for the payment of
principal or interest which remains unclaimed for two years. After payment to
the Transferor, Investor Certificateholders entitled to the money must look to
the Transferor for payment as general creditors unless an applicable abandoned
property law designates another Person.
(c) All Certificates surrendered for payment of the final
distribution with respect to such Certificates and cancellation shall be
canceled by the Transfer Agent and Registrar and be disposed of in a manner
satisfactory to the Trustee and the Transferor.
Section 12.4 Termination Rights of Holder of Transferor
Certificate. Upon the termination of the Trust pursuant to Section 12.1, and
after payment of all amounts due hereunder on or prior to such termination and
the surrender of the Transferor Certificate, the Trustee shall execute a
written reconveyance substantially in the form of Exhibit H pursuant to which
it shall reconvey to the Holder of the Transferor Certificate, without
recourse, representation or warranty, all right, title and interest of the
Trust in the Receivables, whether then existing or thereafter created, all
moneys due or to become due with respect to such Receivables (including all
accrued interest theretofore posted as Finance Charge Receivables) and all
proceeds of such Receivables and Insurance Proceeds relating to such
Receivables and Interchange (if any) allocable to the Trust, except for amounts
held by the Trustee pursuant to subsection 12.3(b). The Trustee shall execute
and deliver such instruments of transfer and assignment, in each case without
recourse, as shall be reasonably requested by the Holder of the Transferor
Certificate to vest in such Holder all right, title and interest which the
Trust had in the Receivables.
Section 12.5 Defeasance. Notwithstanding anything to the
contrary in this Agreement or any Supplement:
(a) The Transferor may at its option be discharged from
its obligations with respect to all of the Investor Certificates issued
by the Trust or any specified Series thereof on the date the applicable
conditions set forth in Section 12.5(c) are satisfied ("Defeasance");
provided however, that the following rights, obligations, powers,
duties and immunities shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of Investor
Certificates of the Trust or any specified Series thereof to receive,
solely from the trust fund provided for in Section 12.5(c), payments in
respect of principal of and interest on such Investor Certificates when
such payments are due; (B) the Transferor's obligations with respect to
such Series of Certificates under Sections 6.3, 6.4 and 12.3; (C) the
rights, powers, trusts, duties and immunities of the Trustee, the
Paying Agent and the Transfer Agent and Registrar hereunder; and (D)
this Section 12.5.
(b) Subject to Section 12.5(c), the Transferor at its
option may use Collections to purchase Permitted Investments rather
than additional Receivables for transfer to the Trust until such time
as no Receivables remain in the Trust.
(c) The following shall be the conditions to Defeasance
under Section 12.5(a): (1) the Transferor irrevocably shall have
deposited or caused to be deposited with the Trustee, under the terms
of an irrevocable trust agreement in form and substance satisfactory to
the Trustee, as trust funds in trust for making the payments described
below: (A) Dollars in an amount, or (B) Permitted Investments which
through the scheduled payment of principal and interest in respect
thereof will provide, not later than the due date of payment thereon,
money in an amount, or (C) a combination thereof, in each case
sufficient to pay and discharge, and, which shall be applied by the
Trustee to pay and discharge, all remaining scheduled interest and
principal payments on all outstanding Investor Certificates of the
Trust or any specified Series thereof on the dates scheduled for such
payments in this Agreement and the applicable Supplements and all
amounts owed to the Credit Enhancement Provider for any Series if so
provided in the related Supplements or agreements with such Credit
Enhancement Provider; (2) prior to each exercise of its right to
substitute money or Permitted Investments for Receivables, the
Transferor shall deliver to the Trustee a Tax Opinion with respect to
such substitution and an Opinion of Counsel to the effect that the
Trust will not be required to register as an "investment company"
within the meaning of the Investment Company Act of 1940, as amended;
and (3) such deposit and termination of obligations will not result in
a Pay Out Event for any Series.
[End of Article XII]
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment.
(a) This Agreement (including any Supplement) may be
amended from time to time by the Bank, the Servicer and the Trustee, without
the consent of any of the Certificateholders, (i) to cure any ambiguity, to
revise any exhibits or schedules (other than Schedule 1), to correct or
supplement any provisions herein or thereon or (ii) to add any other provisions
with respect to matters or questions raised under this Agreement which shall
not be inconsistent with the provisions of this Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any of the Certificateholders
unless such Certificateholders have consented thereto.
(b) This Agreement (including any Supplement) and any
schedule or exhibit thereto may also be amended from time to time by the
Transferor, the Servicer and the Trustee, without the consent of any of the
Certificateholders, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that (i) the Servicer shall have provided an Officer's Certificate to
the Trustee to the effect that such amendment will not materially and adversely
affect the interests of any Certificateholder, (ii) the Servicer shall have
provided a Tax Opinion with respect to such amendment and (iii) the Servicer
shall have provided at least ten Business Days' prior written notice to each
Rating Agency of such amendment and shall have received written confirmation
from each Rating Agency that such action will satisfy the Rating Agency
Condition; provided, further, that such amendment shall not, without the
consent of each Certificateholder of each Series affected thereby, (i) reduce
in any manner the amount of, or delay the timing of, distributions which are
required to be made on any Certificate of such Series, (ii) alter the
requirements for changing the Minimum Transferor Interest Percentage for such
Series, (iii) change the definition of or the manner of calculating the
interest of any Certificateholder of such Series, (iv) change the manner in
which the Transferor Interest is determined or (v) reduce the percentage
pursuant to Subsection 13.1(c) required to consent to any such amendment.
(c) This Agreement and any Supplement may also be amended
from time to time by the Transferor, the Servicer and the Trustee with the
consent of Certificateholders evidencing undivided interests aggregating more
than 50% of the Investor Interest of each and every Series adversely affected,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Certificateholders of any Series then issued and
outstanding; provided, however, that no such amendment under this subsection
shall (i) reduce in any manner the amount of, or delay the timing of,
distributions which are required to be made on any Certificate of such Series
without the consent of all of the related Certificateholders; (ii) change the
definition of or the manner of calculating the Investor Interest, the Investor
Percentage or the Investor Default Amount of such Series without the consent of
the related Certificateholders or (iii) reduce the aforesaid percentage
required to consent to any such amendment, in each case without the consent of
each Certificateholder of all Series affected.
(d) It shall not be necessary to obtain the consent of
Certificateholders under this Section 13.1 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Trustee may prescribe.
(e) Promptly after the execution of any amendment pursuant
to subsections 13.1(a) or 13.1(c) above, the Trustee shall furnish notification
of the substance of such amendment to each Rating Agency providing a rating for
any Series.
(f) Any Supplement executed and delivered pursuant to
Section 6.9 and any amendments regarding the addition to or removal of
Receivables from the Trust as provided in Sections 2.6 or 2.7, executed in
accordance with the provisions hereof, shall not be considered amendments to
this Agreement for the purpose of Section 13.1.
(g) In connection with any amendment, the Trustee may
request, in addition to the Opinion of Counsel required by subsection 13.2(d),
an Opinion of Counsel from the Transferor or the Servicer to the effect that
the amendment complies with all requirements of this Agreement. The Trustee
may, but shall not be obligated to, enter into any amendment which affects the
Trustee's rights, duties or immunities under this Agreement or otherwise.
Section 13.2 Protection of Right, Title and Interest to Trust.
(a) The Servicer shall cause this Agreement, all
amendments hereto and/or all financing statements and continuation statements
and any other necessary documents covering the Certificateholders and the
Trustee's right, title and interest to the Trust to be promptly recorded,
registered and filed, and at all times to be kept recorded, registered and
filed, all in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of the Certificateholders or
the Trustee, as the case may be, hereunder to all property comprising the
Trust. The Servicer shall deliver to the Trustee file-stamped copies of, or
filing receipts for, any document recorded, registered or filed as provided
above, promptly after the same become available following such recording,
registration of filing. The Transferor shall cooperate fully with the Servicer
in connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this subsection 13.2(a).
(b) Within 30 days after the Transferor makes any change
in its name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph (a)
above seriously misleading within the meaning of Section 9-402(7) of the UCC,
the Transferor shall give the Trustee notice of any such change and shall file
such financing statements or amendments as may be necessary to continue the
perfection of the Trust's security interest in the Receivables and the proceeds
thereof.
(c) Each of the Transferor and the Servicer will give the
Trustee prompt written notice of any relocation of any office from which it
services Receivables or keeps records concerning the Receivables or of its
principal executive office and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
financing statement and shall file such financing statements or amendments as
may be necessary to continue the perfection of the Trust's security interest in
the Receivables and the proceeds thereof. Each of the Transferor and the
Servicer will at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America.
(d) The Servicer will deliver to the Trustee: (i) upon
each date that any Additional Accounts are to be included in the Accounts
pursuant to Section 2.6(a) or (b), an Opinion of Counsel substantially in the
form of Exhibit E; and (ii) on or before March 31 of each year, beginning with
March 31, 1996, an Opinion of Counsel, substantially in the form of Exhibit F.
Section 13.3 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall
not operate to terminate this Agreement or the Trust, nor shall such death or
incapacity entitle such Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or commence any proceeding in any
court for a partition or winding up of the Trust, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote
(except with respect to the Investor Certificateholders as provided in Section
13.1 hereof) or in any manner otherwise control the operation and management of
the Trust, or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of
an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of
any provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Certificateholder previously shall have given written notice to the Trustee,
and unless the Holders of Certificates evidencing Undivided Interests
aggregating more than 50% of the Investor Interest of any Series which may be
adversely affected but for the institution of such suit, action or proceeding,
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted by
each Certificateholder with every other Certificateholder and the Trustee, that
no one or more Certificateholders shall have the right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Certificateholders
of any other of the Certificates, or to obtain or seek to obtain priority over
or preference to any other such Certificateholder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 13.3, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK 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, AND
WITHOUT, LIMITING THE GENERALITY OF THE FOREGOING, THE IMMUNITY AND STANDARD OF
CARE OF THE TRUSTEE IN THE ADMINISTRATION OF THE TRUST HEREUNDER SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 13.5 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given (i)
when personally delivered at, sent by facsimile to, (ii) two Business Days
after being sent by courier at or (iii) five Business Days after being mailed
by registered mail, return receipt requested, to (a) in the case of the
Transferor, to Chase USA, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Secretary, (b) in the case of the Servicer, to Chase Bank,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Corporate Finance
officer, (c) in the case of the Trustee, to the Corporate Trust Office, (d) in
the case of the Credit Enhancement Provider for a particular Series, the
address, if any, specified in the Supplement relating to such Series and (e) in
the case of the Rating Agency for a particular Series, the address, if any,
specified in the Supplement relating to such Series; or, as to each party, at
such other address as shall be designated by such party in a written notice to
each other party. Unless otherwise provided with respect to any Series in the
related Supplement any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Certificateholder as shown in the Certificate Register, or with
respect to any notice required or permitted to be made to the Holders of Bearer
Certificates, by publication in the manner provided in the related Supplement.
If and so long as any Series or Class is listed on the Luxembourg Stock
Exchange and such Exchange shall so require, any Notice to Investor
Certificateholders shall be published in an authorized newspaper of general
circulation in Luxembourg within the time period prescribed in this Agreement.
Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 13.6 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity of enforceability of the other provisions of this Agreement or of
the Certificates or rights of the Certificateholders thereof.
Section 13.7 Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Section 8.2, this Agreement
may not be assigned by the Servicer without the prior consent of Holders of
Investor Certificates evidencing Undivided Interests aggregating not less than
66 2/3% of the Investor Interest of each Series on a Series by Series basis.
Section 13.8 Certificates Non-Assessable and Fully Paid. It
is the intention of the parties to this Agreement that the Certificateholders
shall not be personally liable for obligations of the Trust, that the Undivided
Interests represented by the Certificates shall be non-assessable for any
losses or expenses of the Trust or for any reason whatsoever, and that
Certificates upon authentication thereof by the Trustee pursuant to Sections
2.1 and 6.2 are and shall be deemed fully paid.
Section 13.9 Further Assurances. The Transferor and the
Servicer agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested by the
Trustee more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or continuation
statements relating to the Receivables for filing under the provisions of the
Uniform Commercial Code of any applicable jurisdiction.
Section 13.10 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee, any Credit
Enhancement Provider or the Investor Certificateholders, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
Section 13.11 Counterparts. This Agreement 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.
Section 13.12 Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the
Certificateholders and, to the extent provided in the related Supplement, to
the Credit Enhancement Provider named therein, and their respective successors
and permitted assigns. Except as otherwise provided in this Article XIII, no
other Person will have any right or obligation hereunder.
Section 13.13 Actions by Certificateholders.
(a) Wherever in this Agreement a provision is made that an
action may be taken or a notice, demand or instruction given by Investor
Certificateholders, such action, notice or instruction may be taken or given by
any Investor Certificateholder, unless such provision requires a specific
percentage of Investor Certificateholders.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind such
Certificateholder and every subsequent holder of such Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done or omitted to be done by the Trustee or the
Servicer in reliance thereon, whether or not notation of such action is made
upon such Certificate.
Section 13.14 Rule 144A Information. For so long as any of
the Investor Certificates of any Series or any Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, each
of the Transferor, the Servicer, the Trustee and the Enhancement Provider for
such Series agree to cooperate with each other to provide to any Investor
Certificateholders of such Series or Class and to any prospective purchaser of
Certificates designated by such an Investor Certificateholder upon the request
of such Investor Certificateholder or prospective purchaser, any information
required to be provided to such holder or prospective purchaser to satisfy the
condition set forth in Rule 144A(d)(4) under the Securities Act.
Section 13.15 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by this Agreement. This
Agreement may not be modified, amended, waived or supplemented except as
provided herein.
Section 13.16 Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
[End of Article XIII]
IN WITNESS WHEREOF, the Transferor, the Servicer and the
Trustee have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
Transferor on and after June 1, 1996
By:/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
Transferor prior to June 1, 1996
and Servicer
By:/s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
THE BANK OF NEW YORK, Trustee
By:/s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Assistant Vice President
____________________
[FN]
VISA (Registered Trademark) and MasterCard (Registered Trademark) are
registered trademarks of VISA USA, Inc. and of MasterCard International
Incorporated, respectively.
